What Legal Protections Exist for Surrogate Mothers?

The Surrogacy (Regulation) Act, 2021 in India introduces significant legal protections for surrogate mothers, ensuring their welfare and rights throughout the surrogacy process. These protections are designed to prevent exploitation, ensure fair compensation, and ensure that surrogate mothers receive appropriate medical care and support. The law addresses the need for ethical surrogacy practices, ensuring that surrogate mothers are not exploited, and that their physical, emotional, and financial needs are safeguarded.

Legal Protections for Surrogate Mothers

Informed Consent

One of the primary legal protections for surrogate mothers is the requirement for informed consent. Before becoming a surrogate:

• The surrogate mother must be fully informed about the medical procedures, risks, and legal implications of the surrogacy arrangement.
• The Surrogacy (Regulation) Act, 2021 mandates that the surrogate mother must sign a consent form, acknowledging her understanding of the process and agreeing voluntarily to participate in the surrogacy arrangement.
• She must also be informed about her rights during and after the pregnancy, including the right to withdraw consent at any time before the implantation of the embryo.

Medical and Health Protections

Surrogate mothers are entitled to receive medical care throughout the surrogacy process:

• Healthcare expenses, including prenatal and postnatal care, are to be borne by the intended parents as per the surrogacy agreement. This includes expenses for medical check-ups, medication, and hospital care related to the pregnancy and childbirth.
• The surrogate mother is also entitled to medical insurance coverage during the pregnancy and childbirth to protect against any health complications that may arise due to the surrogacy.
• The law mandates that surrogacy clinics ensure that the surrogate mother's health is given top priority and that any medical risks involved in the process are clearly communicated to her.

Compensation and Financial Support

The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy, but allows for altruistic surrogacy, where the surrogate mother is compensated for her medical expenses, insurance coverage, and a reasonable living allowance. This is meant to avoid the exploitation of women while ensuring that the surrogate mother is fairly compensated for her time, effort, and the physical risks involved.

• The compensation should not be considered a payment for services but rather a reimbursement for the expenses incurred due to the pregnancy and childbirth.
• Any payment beyond reasonable medical expenses is illegal under the current law, as it constitutes commercial surrogacy, which has been banned in India.

Protection Against Exploitation

The Surrogacy (Regulation) Act, 2021 explicitly prohibits exploitation of surrogate mothers. The law has stringent rules to prevent the commodification of surrogacy and ensures the following protections:

• No commercial surrogacy: The surrogate mother cannot be paid beyond medical expenses, ensuring that women are not exploited for financial gain.
• The surrogate mother’s physical and emotional well-being is prioritized, and any coercion or undue pressure is prohibited. This prevents situations where women might be exploited due to economic distress or other vulnerabilities.
• The intended parents must not exert any pressure or coercion on the surrogate to take actions against her will, such as giving up the child after birth or undergoing risky medical procedures.

Psychological and Emotional Support

Surrogate mothers are entitled to psychological counseling and emotional support before, during, and after the pregnancy. This ensures that:

• The surrogate mother has the emotional support needed to handle the challenges of the pregnancy and the eventual separation from the child.
• She is informed about the potential psychological impacts of surrogacy, and the intended parents or surrogacy clinics are required to provide adequate emotional and psychological care.

Legal Protection of Parental Rights

The Surrogacy (Regulation) Act, 2021 ensures that once the child is born, the surrogate mother relinquishes her parental rights and cannot claim any custody or legal rights over the child.

• The intended parents, who are legally recognized as the legal parents, are granted custody of the child, and the surrogate mother’s role is limited to carrying and delivering the child.
• This law ensures that the surrogate mother’s parental rights are clearly defined and that she has no legal claim over the child after the birth.

Surrogate Mother’s Right to Withdraw

Under the Surrogacy (Regulation) Act, 2021, a surrogate mother has the right to withdraw from the arrangement at any time before the embryo implantation or if she faces any medical complications during the pregnancy.

• She has the right to refuse further involvement in the surrogacy process if she feels it is detrimental to her health, well-being, or if she is emotionally unprepared for the pregnancy.
• This ensures that surrogate mothers are not forced into continuing the pregnancy if they experience significant physical or emotional distress.

Non-Discrimination

The law emphasizes that no woman should be discriminated against because of her decision to become a surrogate mother. It ensures that:

• Surrogates are not subject to social stigma or discrimination from the community, healthcare providers, or intended parents.
• Surrogates are entitled to be treated with respect and dignity throughout the surrogacy process.

Surrogacy Agreement and Legal Protection

A legal surrogacy agreement is mandatory under the Surrogacy (Regulation) Act, 2021. This document protects the rights of both the surrogate mother and the intended parents by:

• Clearly outlining the surrogate’s rights to healthcare, compensation, and emotional support.
• Specifying the medical care she is entitled to and ensuring that her rights are not violated during the pregnancy.
• The agreement also includes provisions for financial security in case of any medical emergencies or complications during the pregnancy.

Example

Priya, a woman from Delhi, agrees to become a surrogate for a couple who are unable to have children due to infertility. Before agreeing to the surrogacy arrangement, Priya is provided with complete information about the process, including the risks, medical procedures, and emotional aspects. She signs an informed consent document, and the couple agrees to cover all her medical expenses and provide an insurance policy for the duration of the pregnancy. Priya receives regular medical check-ups, and her healthcare is covered by the intended parents. After the birth, Priya relinquishes her parental rights, and the intended parents legally take custody of the child. She is compensated fairly for her time, and receives psychological support to help her through the emotional challenges of surrogacy.

Summary

The Surrogacy (Regulation) Act, 2021 provides robust legal protections for surrogate mothers to safeguard their health, emotional well-being, and rights. These protections include informed consent, healthcare provisions, compensation for medical expenses, psychological support, and clear legal agreements to ensure ethical practices and prevent exploitation. The law ensures that surrogate mothers are treated with respect, have the right to withdraw from the arrangement, and are protected from any forms of coercion or undue pressure. Additionally, the law sets clear guidelines for the relinquishment of parental rights by the surrogate mother after the birth of the child.