Nowadays, producing a child through surrogacy has become a trend among people, and it has gained more attention since celebrities have started opting for it. Priyanka Chopra and Shilpa Shetty recently welcomed their newborn through this process, throwing more light on it.
With more adaptation for surrogacy, we needed a law to regulate the process and avoid malpractices within its ambit. In 2021, the government of India introduced two acts - the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act 2021, to subsequently regulate the process.
India has become a hub for surrogacy and infertility treatment, making space for unethical practices due to the lack of legislation earlier. In this article, we will learn more about the surrogacy act in detail below.
Key Features of the Act.
The Surrogacy (Regulation) Act, 2021 received assent by the President on December 25, 2021, governing the surrogacy procedures in India and regulating the operation of surrogacy clinics, procedures, eligibility criteria, etc.
Regulation of Surrogacy Clinics
- Any person or clinic shall not undertake commercial surrogacy in any form.
- Commercial surrogacy in any form shall not be undertaken by any person or clinic.
- Surrogacy procedures shall be conducted at the place registered under this act and no other place.
- An abortion shall not take place during surrogacy without the written consent of the surrogate mother or by any appropriate authority concerned.
- Storing a human embryo or gamete for surrogacy is prohibited except for other legal purposes like sperm banks, IVF, and medical research.
- Sex selection for surrogacy is prohibited.
Regulation of Surrogacy and Surrogacy Procedures
As per the Act, surrogacy or surrogacy procedures shall only be conducted for the following reasons:
- The intended couple has a medical condition that makes gestational surrogacy necessary. However, such a couple of Indian origin or a woman planning surrogacy must obtain a certificate of recommendation from the Board upon submission of an application by the said persons in the form and manner specified by the Board.
- Surrogacy is for altruistic purposes only. “Altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration, or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative.
- Surrogacy should not be for commercial purposes
- Surrogacy should not take place for producing children for sale, prostitution, or any other form of exploitation
Eligibility Criteria for Surrogate Mother:
- She must be between the ages of 25 and 35, married, and have a child of her own;
- She can only serve as a surrogate mother once;
- She must have a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner.
Eligibility Criteria for Intending Couple:
- The intended couple must be an Indian man and woman who are lawfully wed;
- The man must be between the ages of 26 and 55, and the woman must be between the ages of 25 and 50;
- The intended couple also must not have any prior biological, adoptive, or surrogate children. This clause does not apply to a couple who has a child, is mentally or physically challenged, or suffers from a fatal illness without a permanent cure.
Consent of Surrogate Mother - A written informed consent from the surrogate mother to undergo such operations in a language she can understand has to be obtained. All known side effects and aftereffects of such procedures must be disclosed to the surrogate mother, and they will have an option to withdraw her consent before the implantation of the human embryo in her womb.
Prohibition to abandon child born - The intended couple or intended woman shall not, whether inside India or outside, abandon the child born through a surrogacy procedure for any reason whatsoever.
Rights of surrogate child - A child born through surrogacy will be considered the intended couple's or woman's biological child and will be entitled to all the rights and privileges accorded to a natural child.
Registration Of Surrogacy Clinics
A surrogacy clinic shall not be opened by any person unless it has been duly registered under this Act.
- Every surrogacy clinic that performs surrogacy or surrogacy procedures must apply for registration within sixty days of the appropriate authority appointed.
- Certificate of Registration - The appropriate authority must issue a certificate of registration to the surrogacy clinic within 90 days of the date it received the application after investigating that all the requirements under this Act have been complied with. The certificate shall be valid for three years and renewable after that.
The National Assisted Reproductive Technology and Surrogacy Board (NSB) and State Assisted Reproductive Technology and Surrogacy Boards (SSB) shall be constituted by the center and state governments, respectively.
The Central and State Governments will appoint appropriate authority or authorities for the following matters:
- Granting, suspending, or canceling the registration of surrogacy clinics;
- Enforcing standards for surrogacy clinics;
- Investigating complaints and taking legal actions for breach of provisions;
- Taking legal measures against anybody who uses surrogacy in any setting not being authorized;
- Supervising the implementation of this Act;
- Recommending to the Central Board and State Boards the modifications required in the rules and regulations.
Offenses and Penalties
- Any couple engaged in commercial surrogacy will be punished for the first offense with up to five years of punishment of up to Rs. 5 lakhs, up to ten years in jail, and a fine of up to Rs. 10 lakhs for a subsequent offense.
- Any person, organization, or clinic involved in the exploitation of surrogate mothers or children born through surrogacy will be punished with up to 10 years in prison and a fine of Rs. 10 lakhs.
- Every offense under this Act shall be cognizable, non-bailable, and non-compoundable.