Surrogacy in India

What is surrogacy?

Surrogacy involves a woman agreeing to carry a baby for another couple or an individual. The woman carrying the baby is called a “surrogate mother”. After the surrogate mother gives birth to the baby, its guardianship and custody goes to the intended parents. Surrogacy in India is allowed for the Indian citizen couples who are suffering from infertility issues and are not able to conceive even after other fertility treatments like, IVF or IUI or in cases where the female partner has conditions which either prevent her to carry the child (like, congenital absence of the uterus or surgical removal of uterus) or can complicate the pregnancy endangering her and her child’s life during the pregnancy. There are three main types of surrogate pregnancy - Altruistic Surrogacy, Traditional Surrogacy, and Gestational surrogacy. The difference among them is explained below.

Types of Surrogacy

Surrogacy can be characterized by the following types:

• Altruistic Surrogacy: Altruistic Surrogacy is when a woman volunteers to be a surrogate mother. She usually is a close family member or friend to the intended parents. The surrogate mother does not receive any money for her involvement in the process except for medical and pregnancy-related compensation.
• Traditional Surrogacy: Traditional Surrogacy is when the eggs of the surrogate are fertilized with the intended father’s or donor’s sperm for achieving pregnancy. Traditional surrogacy is not legal in India as the surrogate mother is not biologically related to the child to be born in her womb.
• Gestational Surrogacy: Gestational Surrogacy is the most common type of surrogacy where the sperm and egg of intended parents are fertilized in a laboratory with the process of IVF (In-Vitro Fertilization) and the fertilised embryo is then implanted into the surrogate mother to grow to the full term. This is also known as IVF surrogacy as the process of IVF is used to fertilize the eggs and sperms. In this type of surrogacy, the child is biologically related to the intended parents. In case if donor sperms or eggs were used, then only one of the parents will be biologically related to the child.

Only altruistic surrogacy and gestational surrogacy is allowed in India, meaning the surrogate mother will not have any genetic relationship with the child. If needed the intended parents can seek eggs and sperms from third party donors if required.

Eligibility criteria for Intended Parents

The couples who are not able to conceive, naturally or with other artificial reproductive methods like IUI and IVF treatment can go for surrogacy after showing the medical proof of their inability to conceive. Also, as surrogacy is only allowed for Indian citizens, it is required to get the “certificate of essentiality” ( inability to conceive), and ‘certificate of eligibility’ (proof of Indian citizenship) issued by the appropriate authorities is required when opting for surrogacy procedure in India. The certificate of essentiality will be issued on the following terms and conditions:

1. The couple should have a certificate of proven infertility for both or one of them issued by the District Medical Board
2. They should have an order of parentage and custody of the surrogate baby passed by the Magistrate’s court

The certificate of eligibility will be issued on the following terms and conditions:

1. The couple seeking surrogacy needs to be citizens of India
2. The age of the wife should be between 23 and 50 years
3. The age of the husband should be between 26 and 55 years
4. The intended parents should not have any surviving child (surrogate/ adopted/ biological) except a child who is mentally or physically challenged or have any type of life-threatening disease or any other similar condition

Process of Choosing the Surrogate Mother

The process of screening and selection of a surrogate mother is long and complicated. The surrogate is selected after thorough medical check-up such as blood tests, virology tests, and ultrasound scans to rule out any serious medical condition which can be harmful to the child during the term of pregnancy. The intended parents can choose any close relative as surrogate mother if she agrees or else they can seek help from the registered surrogacy centre while choosing a surrogate. A surrogate mother in India also needs a certificate of eligibility to be deemed eligible for surrogacy. The certificate of eligibility will be issued based on the following criteria:

1. She should be married and should have a child of her own
2. Her age should be between 25 to 35 years
3. She is permitted to be a surrogate mother only once in her life
4. She should have certificate proving her mental and physical fitness
5. She is not allowed to give her own eggs for surrogacy

Along with this surrogate mother is also checked for no history of miscarriage or complications during previous pregnancy or childbirth.

Process of Surrogacy

Surrogacy in India is only allowed for Indian citizens who are not able to get pregnant by any other means. Hence, before opting for surrogacy, they have to get a medical certificate of infertility along with certificate of essentiality and certificate of eligibility as discussed above. If in case they are unable to fertilize their own sperm and eggs, the intended parents will have to decide on the donors. Most of the surrogacy centers have donor programs for both sperm and eggs. Intended parents will have to start looking for a suitable surrogate mother also before the starting of IVF procedure. Now, you can always ask a relative or a close friend to be a surrogate in India. In this way, you may end up saving the extra cost of paying an agency to find you a surrogate. However, if you can’t find a surrogate mother yourself, you can always search for an agency that can provide you with a surrogate. Many clinics and hospitals have tie-ups with agencies as well. If you are getting the surrogacy process done from such a hospital, they might get you a surrogate themselves. Once, the surrogate mother is selected, she will have to go through a screening process (a series of tests) to prove she is physically and mentally fit for the process. Once all the formalities are completed, the process for impregnating the surrogate starts. The surrogate is impregnated using a process called In Vitro Fertilization (IVF). During an IVF process, the eggs and sperm are retrieved from the respective partners or donors (if needed) and then the eggs are fertilized by the sperm in a laboratory. Then the fertilized egg (embryo) is transferred inside the uterus (womb) of the surrogate mother to carry to full term. After 12 days to 2 weeks of IVF, the doctor may test the blood of the surrogate to check if she is pregnant or asks her to take a pregnancy test. If the pregnancy test is positive, the IVF process is termed successful and the surrogate mother is referred to obstetrics and gynecology experts for antenatal care (medical care provided during the pregnancy) making sure that the baby and surrogate mother are healthy throughout the care. If she is not pregnant then the couple can redo the IVF procedure if they want. After the delivery, the baby is given to the intended parents. The surrogate mother may require post-pregnancy care after the procedure for about six weeks before she recovers fully. The pre- pregnancy care, pregnancy and antenatal care cost will be included in the total cost of surrogacy and need to be incurred by the intended parents.

Penalties and Offences related to Surrogacy in India

The intended couple and/ or involved parties may be subjected to 10 years in jail or a penalty of Rs.10 lakh for the following:

• Advertising or undertaking commercial surrogacy
• Exploitation of the surrogate mother
• Exploiting, disowning or abandoning the surrogate child
• Importing or selling human embryos or gametes for surrogacy

Legalities surrounding Surrogacy in India

In order to stop the exploitation of surrogate mothers and children, some rules have been established by the Indian Government. These rules have to be abided by the intended parents and other involved parties.

• Commercial Surrogacy (using surrogacy or its related procedure for money or a reward) is banned in India
• India only allows Altruistic Surrogacy
• Only a couple with proven infertility can opt for surrogacy in India
• It is prohibited to use surrogacy for producing children for prostitution, sale or any other kind of exploitation