Did Nayanthara, Vignesh Shivan break law? Here's what Surrogacy Act says

Soon after actor Nayanthara's husband and director Vignesh Shivan posted photos of their newborn babies online on October 9, social media was abuzz with several questions.

While some wondered whether the power couple took the surrogacy route to become parents, four months into their marriage, others questioned the legal validity of their choice.

While the couple has not specified how they became parents to twin boys, Tamil Nadu Health Minister Ma Subramanian announced that the Directorate of Medical Services would look into whether the actor-director duo has broken any law.

Meanwhile, what does the law say about having kids in India through surrogacy?

The two laws passed in 2021

The law defines surrogacy as a practice wherein one woman bears and gives birth to a child and thereafter hands it over to the intended couple.

In December 2021, the Parliament passed two laws - The Surrogacy (Regulation) Act and The Assisted Reproductive Technology (Regulation) Act.

The Surrogacy (Regulation) Act governs the practice and process of surrogacy, The Assisted Reproductive Technology (Regulation) Act was enacted to regulate and supervise the assisted reproductive technology clinics and (sperm/embryo) banks.

Commercial surrogacy is not allowed in India, but such practices are allowed for altruistic purposes with many restrictions imposed on the person seeking to apply under the law.

The discriminatory side

Many say the Acts are discriminatory against single men who desire to become fathers via surrogacy or married women who already have a child, but desire to expand their family through the procedure.

According to Live Law, a legal news portal, a petition making such an argument is already pending before the Delhi High Court. The Supreme Court has also issued notice on a petition filed by an IVF specialist challenging certain provisions of the Surrogacy and the ART Acts.

Who can benefit from the law?

According to the Surrogacy (Regulation) Act, only married couples who have medical conditions necessitating gestational surrogacy can avail of it - they have to first obtain a certificate of recommendation from a District Medical Board.

An intending woman - who is a widow or divorcee between the age of 35 and 45 years- can also avail of surrogacy.

What does 'medical condition necessitating gestational surrogacy' mean? A woman can opt for surrogacy if:

-She has no uterus or missing uterus or abnormal uterus or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.

-Intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilisation or Intracytoplasmic sperm injection attempts.

- Multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response.

- Any illness that makes it impossible for a woman to carry a pregnancy to viability or a life-threatening pregnancy.

The intending couple - where the woman is between the ages of 23 and 50 years and the man between 26 and 55 years - is eligible under the law.

Only such intending couples can apply who have not had any surviving child biologically or through adoption or earlier surrogacy - an exception has been provided for the couples whose child is "mentally or physically challenged or suffers from life-threatening disorder or fatal illness with no permanent cure".

Who is eligible to be a surrogate mother?

A married woman of the age of 25 to 35 years on the day of implantation, with a child of her own, can be a surrogate mother.

She can act as a surrogate mother only once in her lifetime and with only three attempts of procedure are allowed.

The woman has to give written informed consent for the purpose and also be medically and psychologically fit. Also, she has to be genetically related to the intending couple or intending woman.

Under the rules, the intending woman or couple has to purchase general health insurance coverage in favour of the surrogate mother for 36 months to cover any postpartum delivery complications.

No charges other than medical expenses can be given to the surrogate mother or her dependents or her representative by the intending couple or woman.

Rules and punishments

The intending couple or intending woman is not allowed to abandon the child, born out of a surrogacy procedure, for any reason whatsoever.

A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple or intending woman.

A surrogate mother can be allowed abortion during the process of surrogacy only in accordance with the Medical Termination of Pregnancy Act.

She cannot have intercourse of any kind once the cycle preparation is initiated. She also cannot disclose the identity of the couple seeking surrogacy.

An intending couple or intending woman can be sentenced to a maximum of five years imprisonment and burdened with a fine of Rs 5 lakh for the first offence in case it is found that surrogacy was undertaken for commercial purposes.

Regulation of surrogacy clinics

No surrogacy clinic can conduct or associate with or help in any manner in conducting the surrogacy procedure unless it is registered under the law.

Only qualified persons are required to be employed in such clinics and procedures are allowed to be conducted only at a place registered under the act.

There is a total ban on commercial surrogacy or exploitation of mothers, and children born through such procedures.

Under the Assisted Reproductive Technology (Regulation) Act, the services can be made available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years.

The Nayanthara –Vignesh case

Vignesh Shivan and Nayanthara, who were in a relationship since 2015, married in June 2022 in Chennai.

Though Vignesh shared the photo of their kids, the couple has not clarified whether the kids were born through surrogacy.

The Tamil Nadu government is also yet to announce any updates on the progress of the investigation in the case. Meanwhile, Vignesh's Instagram story on Wednesday, which read "Everything comes to you in the right moment. Be patient. Be grateful," has been widely interpreted as the director asking fans to be patient regarding the details of their children's birth. 

(With inputs from Live Law)

(Live Live Law is India's legal news portal)