The decision to expand a family can take various forms, and in today’s world, both surrogacy and adoption offer hopeful paths for individuals and couples who cannot have biological children. In India, both these methods have become increasingly significant in recent years. However, choosing between surrogacy and adoption involves complex legal, emotional, ethical, and cultural considerations. This article aims to comprehensively compare and analyze both practices, offering an in-depth look into their definitions, governing laws, eligibility criteria, and various other factors that influence decision-making.
1. Definition of Surrogacy and Adoption
Surrogacy refers to an arrangement where
a woman (surrogate mother) agrees to carry and deliver a child for another
person or couple (intended parents), who will become the child's legal parents
after birth. Surrogacy can be either traditional (where the surrogate’s egg is
used) or gestational (where the embryo is created using the egg and sperm of
the intended parents or donors, with no genetic link to the surrogate).
Adoption, on the other hand, is a legal
process through which a person or couple takes on the responsibility of raising
a child who is not their biological offspring. The child’s legal ties to their
biological parents are severed, and the adoptive parents gain full rights and
responsibilities for the child. In India, adoption is governed by specific laws
that ensure the child’s welfare and best interests.
2. Governing Laws
Surrogacy: The Surrogacy (Regulation) Act,
2021, is the primary legislation governing surrogacy in India. This Act
aims to regulate commercial surrogacy, allowing only altruistic surrogacy for
heterosexual married couples. The law prohibits foreign nationals, single
parents, and same-sex couples from engaging in surrogacy. The Act seeks to
ensure ethical practices, prevent exploitation of women, and provide legal
clarity for both surrogate mothers and intended parents.
Adoption: Adoption in India is governed
by various laws depending on the religion of the adoptive parents:
The
Hindu Adoption and Maintenance Act, 1956 (HAMA) for Hindus, Buddhists, Jains, and Sikhs.
The
Guardian and Wards Act, 1890,
which applies to Muslims, Christians, and others.
The
Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) regulates adoption for
all categories of people, including those from different religious backgrounds.
The JJ Act has a dedicated framework for inter-country adoption and ensures
that adoption is carried out through accredited agencies to safeguard the
child's interests.
3. Eligibility Criteria
1. Eligibility of Intended Parents
The
eligibility criteria for intended parents (those seeking to engage in
surrogacy) are laid out under the Surrogacy (Regulation) Act, 2021 and
can be summarized as follows:
Marital
Status:
·
The
intended parents must be an Indian, heterosexual, and legally
married couple. Single individuals, unmarried couples, and same-sex
couples are not eligible for surrogacy under the law. However, a
widow/divorcee woman aged between 35 and 45 is allowed to have a
surrogate child.
·
The
law requires the couple to be legally married (i.e., married under
either Hindu Marriage Act, 1955, Special Marriage Act, 1954, etc.), with a valid
marriage certificate.
Age
Limit:
·
The
woman in the couple should be between the ages of 23 and 50 years
at the time of initiating the surrogacy procedure.
·
The
man should be between the ages of 26 and 55 years.
Medical
and Genetic Requirements:
·
The
intended parents must be infertile (unable to conceive naturally or
through medical intervention). The law specifies that if one of the intended
parents is biologically infertile, surrogacy can be pursued.
·
In
cases where the couple has a child together, surrogacy is allowed only if
one of the parents is infertile. If both parents are fertile, they are
ineligible for surrogacy.
Number
of Children:
·
The
couple must not have any surviving biological children, including
adopted children, except in cases of infertility. In cases where one or
both intended parents have children from a previous marriage or relationship,
they will be ineligible for surrogacy, unless one of the parents is infertile.
Prohibition
of Commercial Surrogacy:
·
Commercial
surrogacy is
prohibited under the Surrogacy (Regulation) Act, 2021. Intended parents can
only pursue altruistic surrogacy, which means that the surrogate mother
is not paid for her services apart from reasonable medical expenses and
insurance coverage.
Foreign
Nationals:
·
Foreign
nationals are not allowed to pursue surrogacy in India. The law limits surrogacy to Indian
citizens and overseas citizens of India (OCI). Additionally,
intended parents must be residing in India for at least 5 years before
seeking surrogacy.
Certificate
of Medical Fitness:
·
Intended
parents are required to present a certificate of medical fitness from a
registered medical practitioner, confirming the need for surrogacy as a medical
necessity.
Regulation
of Assisted Reproductive Technology (ART):
·
The
ART clinics and banks used by the intended parents for the procedure must be
registered with the National Surrogacy Board or State Surrogacy
Boards. These clinics must meet the prescribed ethical and medical
standards.
2. Eligibility of Surrogate Mothers
The
eligibility criteria for surrogate mothers are also specified in the Surrogacy
(Regulation) Act, 2021 to protect their physical and mental well-being and
to ensure that the surrogacy process does not lead to exploitation. These
criteria are as follows:
Age
Limit:
·
A
surrogate mother must be between the ages of 25 and 35 years. This age
range is determined to ensure the health and safety of both the surrogate and
the child. Women under 25 are considered too young to undergo surrogacy, while
women over 35 may face higher health risks associated with pregnancy.
Previous
Childbearing:
·
The
surrogate must have at least one child of her own. This ensures that the
surrogate is physically capable of carrying a pregnancy and is emotionally
prepared to part with the child after birth. Women who have not had their own
children may not be eligible to act as a surrogate, as they may lack experience
in pregnancy and childbirth.
Marital
Status:
·
The
surrogate must be married and should have her spouse’s consent in
writing. The law requires this to ensure that the surrogate’s family is fully
aware of and agrees to her participation in the surrogacy process.
Surrogacy
History:
·
A
woman can act as a surrogate only once in her lifetime. This provision
is designed to prevent the exploitation of women by limiting the number of
times they can carry children for others. A woman who has previously been a
surrogate is not eligible to participate in another surrogacy arrangement.
Medical
and Psychological Health:
·
The
surrogate must be medically and psychologically fit to undergo
surrogacy. This includes undergoing thorough medical tests to ensure she
is physically capable of carrying a pregnancy without significant risk to her
health and that of the child. A psychological evaluation is also required to
ensure that the surrogate fully understands the emotional implications of
surrogacy and is mentally prepared.
No
Commercial Motivation:
·
Surrogates
are only allowed to be compensated for medical expenses and insurance, as
surrogacy is meant to be altruistic, not commercial. Exploitation
of surrogates for financial gain is prohibited, and the law mandates that
surrogates cannot receive any payment other than reimbursement for medical
costs, insurance, and legal expenses related to the surrogacy.
Residency
Requirement:
·
The
surrogate must be an Indian citizen and must reside in India
during the surrogacy process. This is to ensure that the surrogate mother is
protected by Indian laws and that her rights are respected throughout the
process.
Regulation
of ART Clinics:
·
Similar
to the intended parents, the surrogate mother must undergo the procedure
through a registered ART clinic that adheres to the legal and medical
standards set by the National Surrogacy Board.
3.
Prohibited Cases for Surrogacy
The
law specifically prohibits certain categories of individuals from entering into
surrogacy arrangements:
·
Single
Men and Women:
Single men and women are not allowed to enter into surrogacy agreements. The
Surrogacy (Regulation) Act, 2021, restricts surrogacy to married couples.
·
Same-Sex
Couples:
Same-sex couples, whether married or unmarried, are not allowed to engage in
surrogacy under the current legal framework.
·
Commercial
Surrogacy: The
law completely prohibits commercial surrogacy (where the surrogate is
compensated beyond reasonable medical expenses) to prevent exploitation and
ensure ethical practices.
·
Foreign
Nationals: As
mentioned earlier, foreign nationals are banned from seeking surrogacy
services in India under the Surrogacy (Regulation) Act. This provision is
intended to prevent India from becoming a destination for surrogacy tourism.
·
Minors
and Vulnerable Groups:
Surrogacy arrangements are prohibited for minors and women from
vulnerable backgrounds who could be coerced into participating in such
arrangements for financial reasons.
4.
Legal Provisions and Protection of Rights
·
National
Surrogacy Board:
The establishment of the National Surrogacy Board under the Surrogacy
(Regulation) Act, 2021, plays a key role in overseeing surrogacy practices and
ensuring that they are ethical and compliant with the law.
·
Rights
of the Child:
The child born through surrogacy is entitled to the same rights as any
biological child. The intended parents will become the legal parents of
the child upon birth, and they are responsible for the child’s upbringing and
welfare.
·
Legal
Parentage: The parental
rights of the intended parents are established through a legal procedure
after the child is born. The surrogate mother has no legal rights over the
child once the parental rights are transferred to the intended parents.
·
Contracts
and Documentation:
The Surrogacy (Regulation) Act requires that all surrogacy agreements be
executed in writing, ensuring that the surrogate’s consent is fully documented
and that the terms of the surrogacy are clearly defined. The agreement should
specify the rights and obligations of both the intended parents and the
surrogate mother.
Adoption
General
Provisions (Under the Juvenile Justice Act, 2015)
The
Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) is
the central legislation governing adoption in India. The Central Adoption
Resource Authority (CARA), a government body under the Ministry of Women
and Child Development, is responsible for overseeing adoption procedures and
ensuring that the adoption process is fair, ethical, and follows the guidelines
set out by the JJ Act.
The
eligibility of adoptive parents under the JJ Act, 2015 includes the following
criteria:
Age
Criteria:
·
Single
Adoptive Parents:
A single person can adopt a child. The minimum age of the adoptive parent is 25
years, and they must be at least 25 years older than the child they wish
to adopt. However, a single male is not eligible to adopt a girl child
·
Married
Couples: For a
married couple, the maximum combined age of both partners should be at least
110 years. In this case, both husband and wife must consent to the
adoption.
·
Minimum
Age for Couples:
The husband must be at least 26 years of age, and the wife must be at
least 25 years of age to adopt.
·
Age
Difference: The
adopted child must be at least 25 years younger than the adoptive
parent. In case of a couple, the age difference is considered between the child
and the younger of the two spouses.
Marital
Status:
·
Married
Couples:
Adoption is allowed for married couples, regardless of whether the
marriage is of short or long duration. The law requires both spouses to consent
to the adoption.
·
Single
Individuals: Single
individuals, whether male or female, are eligible to adopt. However, single
male individuals cannot adopt a female child unless there are exceptional
circumstances.
·
Widowed
or Divorced Individuals:
A widowed or divorced person may adopt, provided they meet the age criteria and
demonstrate a stable and supportive environment for the child.
Health
and Financial Stability:
·
Adoptive
parents must be mentally and physically fit to adopt a child. They need
to provide medical certificates to confirm their health status.
·
Financial
stability is
also a key consideration. Adoptive parents should be able to provide for the
child's needs, which is assessed based on their income, education,
and overall financial condition.
·
The
guidelines suggest that adoptive parents must be capable of taking
responsibility for the child’s upbringing, including healthcare, education,
and emotional needs.
No
Discrimination Based on Religion or Community:
·
The
JJ Act ensures that adoption is open to people from all religions,
irrespective of their community, caste, or creed. The law aims to eliminate
discrimination based on religion in adoption and focuses solely on the welfare
of the child.
Adoption
of Children from Other Countries (Inter-Country Adoption):
·
The
Inter-Country Adoption process is regulated by CARA under the JJ Act.
Indian citizens living abroad, Non-Resident Indians (NRIs), and Overseas
Citizens of India (OCI) are eligible to adopt Indian children.
·
Foreign
nationals can also adopt Indian children, but they need to comply with the
norms set out by both the Indian authorities and the laws of their respective
countries.
·
Foreign
citizens, however, must first apply through CARA, and the adoption
procedure will be supervised in accordance with international treaties such as
the Hague Convention on Inter-Country Adoption (1993), to which India is
a signatory.
Specific Provisions Under the Hindu Adoption and Maintenance
Act, 1956 (HAMA)
HAMA
governs the adoption process specifically for Hindus, Sikhs, Buddhists, and
Jains. Under this law, the following eligibility criteria apply:
Husband
and Wife (Couple Adoption):
·
A
Hindu male or female (who is not married to another person) can
adopt.
·
A
married Hindu couple can adopt a child together. The husband must consent
to the adoption, and the wife must be of sound mind and able to give
her consent.
·
There
is no age limit specified in HAMA for the adoptive parents, but the general
practice follows that the adoptive parent must be at least 21 years older
than the child.
|
Age of the Child |
Maximum Composite Age of Perspective
Adoptive Parents (Couple) |
Minimum Age of Single Prospective
Adoptive Parent |
|
Up to 2 years |
85 years |
40 years |
|
Above 2 and up to 4
years |
90 years |
45 years |
|
Above 4 and up to 8 years |
100 years |
50 years |
|
Above 8 and up to 18
years |
110 years |
55 years |
Single
Individuals:
·
A
single male (whether widowed or unmarried) can adopt a male child,
while a single female can adopt both male and female children.
·
A
widowed or divorced person can adopt a child as long as they meet the
necessary age and mental health requirements.
Age
Difference:
·
The
adoptive parent must be at least 21 years older than the child.
Adoption
of Step-children:
·
Under
HAMA, step-parents (one spouse adopting the child of the other) are
allowed to adopt the child, provided that both the biological parents consent.
Provisions Under the Guardian and Wards Act, 1890
The
Guardian and Wards Act, 1890 governs adoption for Muslims,
Christians, Parsis, and other communities who are not covered by HAMA. This
Act allows individuals or couples to adopt children, but it doesn't constitute
a full legal adoption (in the sense of severing the child’s ties with
biological parents). Instead, it is a guardianship arrangement where the
adoptive parents take over the guardianship of the child.
Eligibility
of Guardians:
·
Any
Indian citizen, whether single or married, can apply for guardianship
under this Act. The court decides the suitability of the guardian based on the
welfare of the child.
·
Muslim
individuals may
adopt children, but the law does not sever the parental rights of the
biological parents, unlike full adoption laws.
No
Age Restrictions:
·
The
Act does not set any specific age limits for the adoptive parent but
emphasizes the suitability of the guardian based on the best interest of the
child.
Prohibited Cases for Adoption
·
Couples
with Biological Children:
According to the JJ Act, adoption by a couple is restricted if they have
more than two surviving biological children, except in cases of special needs
children or where one of the adoptive parents is infertile.
·
No
Adoption by Same-Sex Couples:
Same-sex couples are not eligible to adopt under the Indian legal
framework, as adoption is generally restricted to heterosexual couples or
single individuals.
·
Psychological
Fitness: If the
prospective parents are deemed to be psychologically unfit to raise a child,
they are disqualified from adoption. Psychological assessments are
carried out to evaluate fitness.
·
Criminal
Conviction: A
person convicted of a criminal offense or who has a criminal record
involving the exploitation or abuse of children is ineligible to adopt.
·
Non-Compliance
with Legal Norms:
The adoption process must comply with the established norms under CARA
and the respective legal provisions. Failure to follow the rules, such as
engaging in illegal adoption practices or providing false information, will
lead to disqualification.
4. Major Differences Between Surrogacy and Adoption
|
Aspect |
Surrogacy |
Adoption |
|
Definition |
A woman carries a child for another couple or
individual. |
A person or couple legally takes the responsibility
of raising a child. |
|
Legal Framework |
Governed
by the Surrogacy (Regulation) Act, 2021. |
Governed
by the Juvenile Justice Act, 2015, HAMA, and the Guardian and Wards Act,
1890. |
|
Eligibility (Intended Parents) |
Indian, Married, & only heterosexual couples
aged 23-50 years (women), 26-55 years (men). Besides, divorced/widow woman
aged 35-45 also eligible. |
Indian citizens, NRIs; age criteria vary (25 years
and above). |
|
Eligibility (Surrogate Mother) |
A
married woman aged 25-35, and must have at least one child of her own. |
N/A |
|
Financial Costs |
Usually very high, including medical, legal, and
compensation to the surrogate. |
Relatively lower, as most adoption processes
involve minimal fees, mostly related to agency costs. |
|
Time Duration |
Can
take 12 to 15 months (including gestational period). |
Adoption
can take several months to years depending on child availability. |
|
Cultural and Ethical Considerations |
Mixed reactions; often considered controversial due
to exploitation risks. |
Generally accepted as a virtuous act, but there can
be societal stigma regarding adopting children from orphanages. |
5. Surrogacy vs. Adoption: Which One is Better?
Choosing
between surrogacy and adoption in India is complex and subjective. Both options
have different legal frameworks, eligibility requirements, and cultural
implications. To make a fair comparison, we’ll analyze the two based on several
important factors:
A. Eligibility
Surrogacy has stringent eligibility
requirements for both intended parents and the surrogate mother. Intended
parents must be a married heterosexual couple, and the surrogate mother must be
married with at least one child of her own. In contrast, adoption has
broader eligibility criteria, and single parents or couples with biological
children can adopt, subject to age restrictions and the number of children
already in the family.
B. Procedural Requirements
Surrogacy involves a complex medical
procedure as well as legal process, which can be lengthy. The intended parents
must go through fertility treatments to create embryos, followed by legal
procedures to confirm parentage post-birth.
Adoption involves an in-depth legal
procedure (but no medical procedure), including the child’s background check,
legal free status declaration, and sometimes long waiting times. The process
may be prolonged due to bureaucratic delays or a lack of adoptable children.
C. Cost
Surrogacy generally involves significant
costs, especially in the case of commercial surrogacy, which includes medical
fees, compensation for the surrogate mother, and legal costs. Adoption,
on the other hand, is more affordable, with costs primarily associated with
agency fees and travel expenses if adopting a child from another state or
country.
D. Time Taken
Surrogacy
is relatively faster when compared to adoption. A typical surrogacy process
takes around 12 to 15 months (including pregnancy period), while adoption can
take months or even years, depending on the availability of a child and the
state of the legal process; in other words, time period is unpredictable.
E. Emotional and Ethical Considerations
Surrogacy
raises several emotional and ethical concerns, including the potential
exploitation of surrogate mothers, the emotional attachment of the surrogate to
the child, and the risks of commodifying reproduction.
Adoption
involves emotionally complex issues for the adoptive parents, especially if the
child has a traumatic past. Adoptive parents may also face societal biases and
stigma, particularly in cases of adoption from orphanages.
F. Cultural Aspect
Culturally,
adoption is seen as a noble and compassionate act, although there is sometimes
a stigma attached to adopting children, especially from orphanages or less
privileged backgrounds. Surrogacy, while gaining acceptance, often faces
criticism for its commercial aspects and ethical concerns surrounding the
exploitation of women.
Likewise,
choosing between surrogacy and adoption is not about which option is
"better" but rather about what suits an individual or couple's
circumstances. The decision depends on personal, legal, emotional, and
financial factors. Here's a simplified explanation:
Eligibility
Matters:
Everyone
eligible for surrogacy, is also eligible to adopt. On the other hand, not
everyone eligible for adoption is allowed to pursue surrogacy. For example,
single individuals, same-sex couples, and certain age groups can adopt but
cannot opt for surrogacy under Indian laws.
Financial
Considerations:
Surrogacy is very costly, involving medical and legal expenses. So, for those
unable to afford surrogacy, adoption becomes the only feasible option.
Cultural
and Personal Preferences:
Couples who can afford surrogacy and prioritize having a genetically related
child may prefer surrogacy over adoption. Others may choose adoption for
ethical or emotional reasons, such as giving a home to an orphaned or abandoned
child.
The
Core Decision: For
those eligible for both options, the choice hinges on their readiness to raise
a child—biological or adopted—and their comfort with the legal, emotional, and
cultural aspects involved.
5. Conclusion
In
conclusion, both surrogacy and adoption are valuable paths to building a
family, each shaped by unique legal, emotional, financial, and cultural
considerations. For some, eligibility or financial constraints may limit their
options, while for others, personal preferences like genetic connection or
ethical beliefs may guide their choice. Ultimately, the decision should reflect
the couple's readiness to embrace parenthood and their understanding of the
responsibilities and joys that come with raising a child, regardless of the
path chosen. Both routes lead to the same beautiful destination—a family built
on love and care.
Frequently Asked
Questions
1. What is the primary difference between surrogacy and
adoption?
Surrogacy
involves the birth of a child carried by a surrogate mother, where the intended
parents may have a genetic connection to the child. Adoption, on the other
hand, is the legal process of permanently taking responsibility for a child
born to someone else.
2. Who is eligible for surrogacy and adoption in India?
In
India, surrogacy is limited to married heterosexual Indian couples and widowed
or divorced women between 35 and 45 years old. Homosexual couples, unmarried
individuals, and foreigners are not eligible for surrogacy. Adoption, however,
is open to a broader range of individuals, including single men and women,
though eligibility criteria differ based on the age and marital status of the
prospective adoptive parents.
3. Which is more expensive—surrogacy or adoption?
Surrogacy
is significantly more expensive due to medical treatments, surrogate
compensation, and legal fees. Adoption, while not free, is generally more
affordable since it does not involve medical expenses or surrogate
compensation.
4. Does surrogacy guarantee a child, and is it faster than
adoption?
No,
surrogacy does not guarantee a child, as medical procedures involved can be
unpredictable and may require multiple attempts. Both surrogacy and adoption
involve lengthy legal processes, but surrogacy tends to be more time-consuming
due to complex medical and legal formalities.
5. Can single individuals opt for surrogacy or adoption?
Single
individuals cannot opt for surrogacy under Indian law. However, single men and
women can adopt children, subject to specific age and gender rules for the
child.
6. What cultural or societal factors influence the choice
between surrogacy and adoption?
In
India, societal preference for a biologically related child often leans couples
toward surrogacy, especially if they are financially capable. Adoption may face
stigma in certain communities but is increasingly being seen as a noble way to
provide a home for children in need.
7. Which option is better for couples wanting a genetic
connection to their child?
Surrogacy
is the only option for couples desiring a genetic connection to their child
when natural conception is not possible. Adoption does not provide this genetic
link.
8. What are the legal frameworks for surrogacy and adoption in
India?
Surrogacy
is governed by the Surrogacy (Regulation) Act, 2021, which imposes strict
eligibility and procedural criteria. Adoption is regulated under the Juvenile
Justice (Care and Protection of Children) Act, 2015, and guidelines by CARA
(Central Adoption Resource Authority).
9. Can a couple choose both surrogacy and adoption?
Yes,
a couple can pursue both options if they meet the eligibility criteria.
However, each path requires careful consideration of legal, emotional, and
financial factors.
10. What factors should guide the decision between surrogacy and
adoption?
Couples
should consider their eligibility, financial resources, desire for a genetic
connection, readiness for legal and medical procedures, and cultural
preferences when deciding between surrogacy and adoption.
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