Written by:Adv. Pooja Gupta

Surrogacy (Regulation) Bill in India [March 2022]

Introduction of the Surrogacy regulation bill in India: – The Rajya Sabha has approved the progression of two crucial bills that will regulate surrogacy and other reproductive health procedures in India: the Assisted Reproductive Technology (Regulation) Bill, 2020, & the Surrogacy (Regulation) Bill, 2019.

Despite the passage of specific bills, the Surrogacy Bill was passed as a separate bill to protect the surrogate mother’s rights during the methods. Because the Assisted Reproductive Technology (ART) Bill does not call for the use of a third party (a surrogate), it covers a wide range of methods for obtaining a pregnancy, including gamete (sperm or oocyte) donation, in-vitro fertilisation, and gestational surrogacy.

The (Regulatory) Surrogacy Bill

The bill’s primary objective is to outlaw commercial surrogacy and only allow altruistic surrogacy. As per the bill, altruistic surrogacy is defined as surrogacy in which the spouse provides no cash or reimbursement to the surrogate mother other than for healthcare expenditures. Commercial surrogacy is outlined as the sale or purchase of a newborn infant and is prohibited by statutory provisions.

Surrogates are used by whom?

If you’re a female, you might want to think about using a surrogate for a variety of reasons, including: –

  • Your uterus is having medical issues.
  • You had a hysterectomy, which meant your uterus was removed. You have conditions that cause pregnancy impossible or dangerous for you, such as severe cardiac disease.
  • If you tried but were unable to become pregnant using various assisted-reproduction techniques, such as IVF, you may want to consider surrogacy.
  • Surrogates have also enabled people who would not be easily able to adopt a baby due to their age or marital condition to become parents.

If a gay partner chooses a traditional surrogate, one of them uses fertility treatment to fertilize the surrogate’s egg. The baby is then carried and delivered by the surrogate.

A gay couple could also choose an egg donor, fertilize that donated egg, and then implant the embryo in a gestational surrogate to carry until birth.

The criteria of the couple & the surrogate mother

The law also establishes eligibility requirements for both the surrogate spouse and the surrogate mother. A “healthcare certificate of essentiality,” that contains a health – care medical certificate of known and established fertility issues for one or both individuals, a Court decision on the parentage & parental rights of the baby born through the surrogacy arrangement, or health coverage for the surrogate mother for sixteen months, is considered necessary for the partner in question. Furthermore, the couple should consist of a male between the ages of 26 – 55 and a female between the ages of 25 – 50.

Both partners must be Indians who have been married for at least 5 yrs & have no adopted, surrogate or biological children (unless the child is intellectually impaired or has a life-threatening illness).

The bill also specifies the stringent requirements for anyone interested in becoming a surrogate mother. The woman in question must’ve been married (at least once in her life )& have her own baby. She should be a close relative of the spouse considering surrogacy and aged 25 to 35. Any female who consented to be a surrogate can only do so once in her life, and she must be medically and psychologically fit at the time of the procedure.

The bill also states that the surrogate mother’s written and informed consent is required prior to the surrogacy proper procedure, and also that the surrogate can revoke or withdraw her consent at any moment before the embryo(unborn baby) is implanted. The bill also prohibits surrogacy couples from abandoning their child after birth under any kind of circumstances.

Surrogacy clinics regulation

The legislation regulates surrogacy clinics in the country extensively and prohibits any surrogacy clinic from permitting commercial surrogacy. Surrogacy clinics are also prohibited from marketing in electronic and print media, as well as performing sex selection or determination treatments, under the legislation. Any surrogacy-related procedure can only be performed by registered surrogacy clinics, and such clinics must apply for registration with the Appropriate Authority as defined in the bill.

Surrogacy boards at the national & state levels

The legislation mandates the establishment of National & State Surrogacy Boards. The National Surrogacy Board will be chaired by the Minister of Health & Family Welfare and will include the Secretariat of the Department, three female Parliament members, & three representatives from the Ministries of Women & Child Development, Law & Justice, and Home Affairs, among others.

The National Board’s primary functions will include policy recommendations to the government, evaluating and supervising the law’s implementation, establishing a code of conduct, and monitoring the State Surrogacy Boards.

Likewise, each state must establish State Surrogacy Boards that will keep reporting to the Central Board & the Govt while also evaluating the appropriate law enforcement officials in the state. The State & Central Governments are obligated to appoint the necessary authority within 90 days of the bill becoming an Act.

Punishment for offenses

The following acts are legally defined as offences and are punishable as such: –

  • Commercial surrogacy, whether undertaken or advertised A ten-year prison sentence and a ten-lakh-rupee fine.
  • Abandoning, disowning, or exploiting a surrogate child carries a ten-year prison sentence and a ten-lakh-rupee fine.
  • Surrogate mother exploitation – A ten-year prison sentence and a ten-lakh-rupee fine.
  • Trading human embryos, Selling, importing, or gametes for surrogacy- A 10 year prison sentence and a 10 lakh-rupees fine.
  • Conducting a sex selection- Penalty of up to ten years in prison & a fine of up to 10 lakh rupees.

Any medicinal practitioner who violates the Act is subject to a five-year prison sentence and a fine of up to 10 lakh rupees. If the same person commits a repeat offence, he will be initially reported to the authorized government and the State Medical Council, and his registration will be suspended for 5 years.

Any couple who engages in commercial surrogacy will face a maximum sentence of five years in prison and a fine of Rs. five lakhs for the first offence, and a maximum sentence of ten years in prison and a fine of Rs. ten lakhs for any successive offence.

All of the offences listed in the law are non-bailable.

Conclusion of the Surrogacy regulation bill in India

The recently passed Surrogacy legislation in India has served as a model for other Asian countries that have enacted surrogacy prohibitions. Thailand is one of these countries. The morally reprehensible exploitation of poor females, as well as their inherently exploitative living standards, were major motivators for the passage of this legislation. It’s difficult to predict where the Indian surrogacy regulations will go from here.

If the recently approved bill is any indication, international intended parents will not be able to surrogate in India anytime soon. However, unethical practices and illicit activities continue to be a problem in India, where surrogacy is a completely unregulated industry.

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