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Recently, a petition filed in the Supreme Court of India argued that the Assisted Reproductive Technology Act, 2021 and the Surrogacy Act, 2021 violate the reproductive rights of women. After hearing the PIL, the apex court on Monday issued notice to the Ministry of Health and Family Welfare, Ministry of Women and Child Development, and the Indian Council for Medical Research, seeking their response on the same.
Both the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 came into effect from January 25 this year.
The Surrogacy (Regulation) Act 2021 prohibits commercial surrogacy and allows only altruistic surrogacy. But the petitioner, Arun Muthuvel, an IVF specialist from Chennai, contended that permitting only altruistic surrogacy may increase exploitation of women within the family, which he compared to forced labour.
Muthuvel, who is the Managing Director of Iswarya Fertility Services Private Ltd, further challenged the Acts for direct infringement of reproductive rights of women which is integral to the right to privacy guaranteed under Article 21 of the Constitution. The petition also sought a direction to recognise the rights of women to avail surrogacy as a means of assisted reproductive technique to experience motherhood. other than married women above 35 years of age
Rather than banning commercial surrogacy completely, it should be regulated so that surrogates can receive the right security, compensation, and medical care, said Dr. Priti Gupta, Senior Consultant in Fertility & IVF services, First Step IVF (Centre for Reproductive Medicine), New Delhi.
She continued, "The Surrogacy Act has a lot of drawbacks and yes it infringes on the right of a poor woman. In India there is so much poverty, women are not encouraged to work outside the home. Despite the fact that there are many other options, surrogacy might be seen as a source of income for them. But the surrogacy law says that an individual can go for altruistic surrogacy i.e. no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy."
Instead, she suggested regulating such laws to safeguard surrogates' rights.
Dr. Priti suggested that a board can be established to control/ regulate IVF clinics and check for any illegal activity.
She explained, "With the existing law, the chances of illegal activities have also increased because it is not possible to monitor or keep the tap of surrogates who are helping without coming forward and by doing this they will suffer again because there are no signed papers which say that the surrogate will be paid, so at worst if the couple decides not to pay her, she can't do anything. Therefore, there should be a board that can regulate the IVF clinics and sees that they are carrying out legal activities."
Additionally, she said that surrogate mothers' rights can be protected by opening bank accounts for them and ensuring that birth takes place in a reputable hospital so that they don't experience any medical issues and truly receive the money.
"In fact, guidelines can be formed as per the stages of pregnancy to protect the rights of the surrogate (in case of abortion or other medical complications during the pregnancy)."
Even for those who choose altruistic surrogacy, lawyers charge expensive fees to prepare the necessary paperwork, which is an add-on burden for the couple seeking IVF, said Dr. Priti.
"There are genuine couples who are in need of surrogacy. Personally, I have seen patients going through 9 IVF failures, or having very thin uterus line who desperately and genuinely requires surrogacy. It's time to regulate such laws and safeguard surrogates' rights so that couples who are battling medical challenges can choose surrogacy," she noted.
Surrogacy law needs to be regulated and right policies need to be formulated for surrogates who are willing to help couples so that both get the best out of this without suffering.
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