What is Altruistic Surrogacy, and How Does It Work Legally?

Altruistic surrogacy refers to a surrogacy arrangement where the surrogate mother carries and delivers a child for intended parents without any financial compensation, other than medical expenses and other necessary costs directly related to the pregnancy. This form of surrogacy is primarily motivated by the desire to help others, rather than for profit. Unlike commercial surrogacy, where the surrogate receives significant financial compensation, altruistic surrogacy is considered more ethical and is the only form legally allowed in India under the Surrogacy (Regulation) Act, 2021.

Legal Framework for Altruistic Surrogacy in India

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was enacted in India to regulate surrogacy arrangements and prohibit commercial surrogacy. The Act allows for altruistic surrogacy for heterosexual married couples who have medical conditions preventing them from having children. The law clearly distinguishes altruistic surrogacy from commercial surrogacy:

• Altruistic Surrogacy is only permitted when the surrogate mother does not receive any monetary compensation beyond medical expenses and insurance during the pregnancy.
• Commercial Surrogacy, where the surrogate is compensated for carrying and delivering the child, is prohibited in India under this law, except for non-resident Indians (NRIs), overseas citizens of India (OCIs), and foreign nationals under specific conditions.

Eligibility for Altruistic Surrogacy

Altruistic surrogacy is restricted to certain individuals or couples, and the Surrogacy (Regulation) Act outlines the eligibility criteria:

• Intended Parents: The intended parents must be heterosexual married couples who have been married for at least 5 years, and must demonstrate that they have been unable to conceive naturally or through medical interventions. They must be Indian citizens or overseas citizens of India (OCIs).
• Age Limits: The intended mother must be between 23 and 50 years old, and the intended father must be between 26 and 55 years old.
• Surrogate Mother: The surrogate mother must be a close relative of the intended parents (i.e., a sister, cousin, or other close family member), and must be between 25 and 35 years old. She must have already had at least one child of her own and should be physically and mentally healthy.
• The surrogate cannot have a history of medical complications or abortion issues that could jeopardize her health or the health of the child.

Legal Process of Altruistic Surrogacy

The process of altruistic surrogacy involves several legal and medical steps:

• Medical and Psychological Screening: Both the intended parents and the surrogate mother must undergo thorough medical and psychological screenings to ensure that they are physically and mentally fit for the process.
• Surrogacy Agreement: A formal agreement must be signed between the intended parents and the surrogate mother, detailing the terms of the arrangement. This agreement must be vetted by a fertility clinic and registered with the appropriate authorities.
• Medical Treatment and Pregnancy: Once the agreement is in place, the embryo created from the intended parents' eggs and sperm (or from donors if needed) is implanted into the surrogate’s womb. The surrogate is then monitored throughout the pregnancy.
• Legal Parentage: Upon the birth of the child, the intended parents are legally recognized as the child’s parents. The surrogate mother relinquishes her parental rights, and the intended parents obtain legal custody of the child.

Compensation for the Surrogate Mother

Unlike commercial surrogacy, where the surrogate receives a significant financial reward, in altruistic surrogacy, the surrogate mother is only entitled to compensation for the medical expenses related to the pregnancy (such as doctor’s fees, hospital bills, and medications), and some insurance coverage for the duration of the pregnancy. The surrogate is not allowed to receive any additional payment for carrying the child.

The surrogate may be entitled to reimbursement for expenses related to the pregnancy and childbirth, including travel costs, medical insurance, and any unforeseen medical complications.

Surrogacy Clinics and Regulation

Surrogacy clinics in India must be registered under the guidelines of the National Assisted Reproductive Technology and Surrogacy Board.

• Clinics must ensure that both the intended parents and the surrogate meet the necessary medical and psychological criteria.
• The Surrogacy (Regulation) Act, 2021 mandates that surrogacy be non-commercial and ensures that the rights of the surrogate mother and the intended parents are protected through legal contracts.

Legal Protections for the Surrogate and Intended Parents

• Surrogate Mother's Rights: The surrogate mother is entitled to medical care and insurance coverage for the entire duration of the pregnancy. She is also protected by the surrogacy agreement, ensuring she is not coerced or exploited.
• Intended Parents' Rights: Once the child is born, the intended parents are granted full legal rights over the child. The surrogate mother relinquishes her parental rights upon birth, and the intended parents are recognized as the legal parents in all documentation, including the birth certificate.

Ethical Considerations

Altruistic surrogacy is generally viewed as a more ethical form of surrogacy compared to commercial surrogacy. Since the surrogate mother is not financially compensated beyond medical costs, it is believed to be a selfless act of helping a couple achieve parenthood. However, it raises other ethical issues, including:

• Exploitation: Even without financial compensation, there can still be concerns about the surrogate mother being exploited emotionally or socially, especially in cases where the arrangement involves family members.
• Psychological Effects: The emotional and psychological effects on the surrogate mother, intended parents, and the child must also be carefully considered, as they can all experience a range of feelings during and after the surrogacy process.

Example

Ravi and Priya, a married couple from Mumbai, decide to pursue altruistic surrogacy after several unsuccessful attempts to conceive. They approach Priya’s sister, Neha, who agrees to be their surrogate. The process begins with medical evaluations, psychological screenings, and a legal contract outlining the terms of the surrogacy. Neha agrees to carry the child without any monetary compensation, other than reimbursement for her medical expenses. After the pregnancy is successful, Neha gives birth to the child, and Ravi and Priya are legally recognized as the child's parents. Neha relinquishes her rights as the biological mother, and the couple receives a birth certificate listing them as the legal parents.

Summary

Altruistic surrogacy is a legal and ethical alternative to commercial surrogacy, where the surrogate mother agrees to carry a child for intended parents without financial compensation beyond necessary medical and pregnancy-related expenses. It is governed by the Surrogacy (Regulation) Act, 2021, which limits surrogacy arrangements to heterosexual married couples and mandates that the surrogate mother must be a close relative of the intended parents. This arrangement aims to prevent exploitation and is designed to help couples who cannot conceive naturally. Altruistic surrogacy is subject to medical, legal, and ethical scrutiny to ensure the welfare of both the surrogate mother and the child.