Surrogacy: the Scheme of the Act

In one line

A woman carries a child she will not keep, for people who cannot carry one, and the Act's whole design is to make sure she is not paid and not abandoned.

In the wording a student can write in an exam: the Surrogacy (Regulation) Act 2021 permits only altruistic gestational surrogacy, by prohibiting under section 4 any surrogacy except for a medical indication necessitating gestational surrogacy, only for altruistic purposes, and not for commercial purposes or for producing children for sale, prostitution or exploitation; it requires three certificates and a court order on parentage and custody before a procedure may begin; it protects the surrogate mother by consent, insurance and a once-in-a-lifetime limit; and it deems the child a biological child of the intending couple.

Why the law has this at all

Surrogacy separates gestation from parenthood, and in doing so it creates a relationship the law had no category for. The woman carrying the child is not the mother in the intended sense, is not a patient being treated for her own condition, and is not an employee. Before the Act she was, in practice, a party to a contract.

That produced three problems the Act is built around.

The child's status. Who the parents are, and from the moment of birth rather than after a later proceeding, since a child whose parentage is unsettled has no one owing it anything.

The surrogate's position. A woman undergoing pregnancy and childbirth with no therapeutic benefit to herself, frequently poorer than the people commissioning, and exposed to pressure at every stage including on whether to continue the pregnancy.

Commercialisation. The same reasoning as [Trade in Organs and Its Punishment]: where a scarce and valuable capacity is located in poor people, an unregulated market extracts it from them.

The Act answers all three, and the answers are strict enough that the criticism of it is the opposite of the criticism of the ART Act: not that it under-protects, but that its eligibility conditions exclude a great many people who might otherwise have used it.

Sections 1 to 3: application and definitions

Section 1 gives the short title, extent and commencement. Section 2 contains the definitions, of which these decide questions:

• altruistic surrogacy, a surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for her, are given to the surrogate mother or her dependents or representative;
• commercial surrogacy, commercialisation of surrogacy services or procedures or their component services, including selling or buying human embryos or trading in gametes, or a surrogacy where a monetary benefit or reward in cash or kind exceeding the basic medical expenses and insurance coverage is given;
• intending couple, a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;
• surrogate mother, a woman bearing a child who is genetically related to the intending couple, through surrogacy from the implantation of an embryo in her womb.