Six Months Maternity Leave for Surrogates

1. In June, 2024 The Indian government notified an amendment to the Central Civil Services (Leave) Rules, 1972 to grant maternity leave and other benefits to government employees who opt for surrogacy.

• Until now, there were no rules to grant maternity leave to women government employees in case a child was born through surrogacy.

2. This move aims to address the existing gap in the leave policies for government employees choosing surrogacy.

Amended Rules

1. The new rules provide for maternity leave, paternity leave, and child care leave for government employees who opt for surrogacy.
2. Maternity Leave: Women government employees who have children through surrogacy can avail 180 days of maternity leave.
3. Paternity Leave: Male government employees who are intended fathers can avail 15 days of paternity leave within six months of the child's birth.
4. Child Care Leave: Intended mothers with less than two surviving children can avail child care leave, as per the existing provisions in the Central Civil Services (Leave) Rules.

What is Surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) carries and delivers a baby for another person or couple (the intended parents). This is often chosen when the intended parents are unable or unwilling to carry a pregnancy themselves.

1. Surrogate Mother: A woman who bears a child on behalf of the intended parents.
2. Intended Parent: The person who intends to become the parent of the child born through surrogacy.

Types of Surrogacy

1. Traditional Surrogacy: The surrogate's own egg is used, making her the genetic mother of the child.
2. Gestational Surrogacy: The embryo is created using the eggs and sperm of the intended parents or donors, and then transferred to the surrogate. The surrogate has no genetic link to the child.

Comparison of Traditional and Gestational Surrogacy

Traditional Surrogacy	Gestational Surrogacy
The father's sperm is used to fertilize the surrogate's egg.	The intended father's sperm and the intended mother's eggs are combined, creating an embryo which is then implanted into a surrogate.
Typically costs less than gestational surrogacy.	Typically costs more than traditional surrogacy, which may require careful financial planning.
May pose more legal issues since the baby is genetically related to the surrogate.	The baby is genetically related to both parents, making this method a more safe and risk-free option.
The surrogate undergoes IUI, Intrauterine Insemination, where the sperm cells are placed in the surrogate's uterus.	IVF, In-Vitro Fertilization is used, where the egg is harvested from the intended mother or donor and fertilized with the father's sperm outside of the womb.

The difference between commercial surrogacy and altruistic surrogacy  Commercial surrogacy: where the surrogate mother receives a fee.  Altruistic surrogacy: where the surrogate mother does not receive a fee for her own use; she is only reimbursed for outofpocket expenses (food, clothing, medication, lost wages, etc.).

Indications for Surrogacy:

Surrogacy is often considered when women have medical conditions that make pregnancy impossible or risky, such as:

1. Abnormal uterus or absence of uterus (congenitally or due to hysterectomy)
2. Medical conditions like cervical cancer, endometrial cancer, heart or kidney disease

Criteria for Surrogacy:

To avail of surrogacy, a couple must meet certain criteria:

1. 1. They must be married for at least five years.
   2. The wife must be between 25-50 years old, and the husband must be between 26-55 years old.
   3. They must not have any living child, unless the child has disabilities or a life-threatening illness.
   4. They must have certificates of eligibility and essentiality, proving infertility and a court order for parentage and custody of the surrogate child.
   5. They must provide insurance coverage for the surrogate mother for 16 months.

Comparison of Surrogacy Practices in India

Practice of Surrogacy in India Prior to Regulation Act, 2021	Surrogacy Regulation Act, 2021
India was a commercial hub for surrogacy due to poor socioeconomic conditions of women.	Allows only altruistic surrogacy; bans commercial surrogacy.
Presence of several middlemen and brokers.	Punishable offense.
Not formally regulated.	To be observed under registered medical professionals.
Lack of provisions for an abandoned child.	Abandonment is a punishable offense (10 years of jail/10 lakh fine).
Surrogacy option available to any couple.	Option only if either partner has proven infertility.
No regulations regarding prostitution or sale of the child.	Punishable offense (10 years of jail/10 lakh fine).
Abortion possible with consent of intended parents.	Abortion only with consent of surrogate mother and per the MTP Act.
No specific criteria for intended couple.	Provisions for eligibility: Married couple with 5 years of marriage.
No certificate required to opt for surrogacy.	Male 26-55 years old, female 25-50 years old.
No requirement of any order to be issued.	No living child (biological, adopted, surrogate), except in cases of mental disability.
Anyone could become a surrogate.	Prior certificate to be issued by District Medical Board (DMB).
No criteria for becoming a surrogate.	Order to be issued by the Magistrate.

Regulation of Surrogacy

1. The National Surrogacy Board and State Surrogacy Boards are responsible for regulating surrogacy clinics and enforcing standards.
2. The Act prohibits practices like commercial surrogacy, embryo selling, and exploitation or abandonment of surrogate mothers or children.
3. Violations can lead to imprisonment for up to 10 years and a fine of Rs. 10 lakh.

Why regulations on Surrogacy?

India as Surrogacy hub

1. India has emerged as a hub for infertility treatment, attracting people from the world over with its state-of-the-art technology and competitive prices to treat infertility

Socio-economic conditions:

1. Soon enough, due to prevailing socio-economic inequities, underprivileged women found an option to rent their wombs and thereby make money to take care of their expenses
2. This was often practiced to facilitate marriage, enable children to get an education, or to provide for hospitalisation or surgery for someone in the family.

Rising middlemen

Once information of the availability of such wombs got out, the demand also picked up.

1. Unscrupulous middlemen inveigled themselves into the scene and exploitation of these women began.
2. Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did not receive the promised sum

Other issues

1. in 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child.
2. In 2012, an Australian couple commissioned a surrogate mother and arbitrarily chose one of the twins that were bom

Criticisms

Too restrictive regulations

1. For instance, it does not allow single women, or men, or gay couples to go in for surrogacy. This Deprives homosexuals and single parents.

Lack of clarity

1. Bill doesn't define "close relatives" as it is hard to regulate commercial surrogacy in this context

Reproductive rights:

Reproductive Rights of women are restricted as State deciding mode of Parenthood.

1. It Restricts basic human right (of Having a Child) and article 14 because of the discriminatory approach on the basis of nationality, mantal status and sexual orientation and Violates freedom of Choice and Declaration of Human Rights 1948.
2. The Act doesn't address issues like Postpartum problems.

Rights of women surrogates:

1. The act is criticised for curtailing the rights of women surrogates under the garb of curbing exploitation.
2. Prohibition of payment can lead to more exploitation of Women.
3. Eg. Several villages in Gujarat are known for commercial surrogacy. As per reports, Anand, known for Amul's dairy factory, has also acquired fame as India's 'surrogacy capital, offering fucrative monetary opportunities for impoverished women.
4. Such practices have now been thrown into a quandary with the passage of this Act

Global Perspectives on Surrogacy

1. Countries allowing commercial surrogacy: Iran, some US states
2. Countries banning all forms of surrogacy: France, Finland, Italy, Japan, Spain, Sweden, Switzerland, Hungary, Ireland
3. Countries with similar regulations to India's proposed bill: Australia, Canada, Israel, Netherlands, New Zealand, South Africa, UK, Vietnam, Thailand, Cambodia, Nepal, Mexico

India's Middle Path

India seeks to strike a balance by:

1. Banning commercial surrogacy, including for foreigners
2. Allowing and regulating altruistic surrogacy for Indian citizens

Laws Related to Surrogacy

1. Relevant laws and acts include:
   • Surrogacy (Regulation) Act, 2021
   • Surrogacy (Regulation) Rules, 2022
   • Assisted Reproductive Technology (ART) (Regulation) Act, 2021

Way Ahead

1. Surrogacy is legal in India. But making it commercial is illegal. It is a humanitarian act and is recognized by law.
2. Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.
3. If a critical mass builds up, amendments might have to be resorted to in order to resolve the grievances and ensure access for all categories of parents.
4. Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.
5. The issues like middlemen will have to be handled with a stern visage, even as sensitivities of people are factored in.

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