Surrogacy, is a contract between the intended parents and the surrogate mother wherein, the surrogate mother pledges to deliver the child to the intended parents free of any legal or parental responsibilities. This Article by Swagatika Patel (Team Law Community) summarises the law on surrogacy in India.
Surrogacy Regulation Act, 2021 – A Primer
The Latin word “surrogatus,” meaning “substitute” or “an alternative,” is where the word “surrogacy” originates. A third party (surrogate mother) conceives and gives birth to a child through the reproductive practise known as surrogacy. Surrogacy, is a contract between the intended parents and the surrogate mother wherein, the surrogate mother pledges to deliver the child to the intended parents free of any legal or parental responsibilities.Over the years, India had become a hub for surrogacy seekers from across the globe; and to rein this multi-million unregulated industry the Government of India passed two bills that have become landmark acts: The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 (hereinafter the Act).The Surrogacy (Regulation) Bill was passed in the Lok Sabha but not in the Rajya Sabha, which relegated it to a Parliamentary Standing Committee for deliberation. After receiving the President’s assent on December 25, 2021, the Act aimed to regulate the practise and process of surrogacy came into effect from January 25, 2022.Key Highlights of the Act:
1.Regulation of surrogacy clinics-
the Act categorically mandates thata) only registered clinics and practitioners possessing qualifications as prescribed can carry surrogacy and related activities and that also in places registered under the Act.b) prohibition of any form of commercial surrogacy except for altruistic surrogacy.c) prohibition of advertisement and promotion of surrogacy and/or related activities by registered clinics/practitioners.d) prohibition on storage of human embryo or gamete for the purposes of surrogacy.Every surrogacy clinic is required to display its certificate of registration at a conspicuous place.
2. Surrogate mother & her rights–
The Act clearly lays down the pre-requisites to become a surrogate a) the surrogate mother should be married, b) she must have had a child prior to the surrogacy offer, c) she is also required to be between 25 to 35 years of age, d) the she shall be allowed to offer her services just once, e)she shall not gain monetarily by the seeking couple.Under section 6 of the Act the surrogate mother must be informed of all known side effects and after-effects of the surrogacy procedure and she must provide written informed consent in the language she understands.According to section 3 of the Act, abortion during the period of surrogacy can be undertaken only after the written consent of the surrogate mother and on authorisation of the same by the appropriate authority. Such authorisation shall be in tune with the Medical Termination of Pregnancy Act, 1971.Further, as per the Surrogacy (Regulation) Rules, 2022 (hereinafter the Rules) specifies that the number of attempts of any surrogacy procedure on the surrogate mother will not be more than 3 times.
3. Rights of the surrogate child
Section 8 of the Act stipulates that a child born through surrogacy is presumed to be the intended couple’s biological child. Such a child shall have all of the rights and privileges accorded to a natural child under any law in force at the time.
4. Registration of surrogacy clinics
Surrogacy clinics are not permitted to perform surrogacy procedures unless they are registered with the appropriate authority. The Act establishes a registry to be known as the National Assisted Reproductive Technology and Surrogacy Registry for the purpose of registering surrogacy clinics (hereinafter the Appropriate Authority). In addition to the Centre, each State and Union Territory must establish a similar type of board for surrogacy matters.Clinics must apply for registration to the Appropriate Authority and every such application for registration shall be accompanied by a fee as prescribed under the Rules. A certificate of registration, valid for 3 years, shall be issued by the Appropriate Authority, within 90 days of receipt of an application and upon satisfying itself that the applicant surrogacy clinic is in a position to provide facilities and maintain equipment and standards as prescribed under the Act and Rules.
5.Cancellation and suspension of registration
If any surrogacy clinic is found in contravention of any provisions of the Act or the Rules, the Appropriate Authority may on its own or on receipt of a complaint, issue a show cause notice to the defaulting surrogacy clinic. Under the Act, the Appropriate Authority has the power to suspend the registration of any surrogacy clinic for reasons to be recorded in writing and without issuing notice if it is in public interest.
6.Offences under the Act and penalties
The Act strictly prohibits i) commercial surrogacy, ii) advertisements in any manner regarding commercial surrogacy, iii) abandonment or exploitation of surrogate children, iv) exploitation of surrogate mother, v) sale of human embryo or gametes for the purposes of surrogacy, vi) import of human embryo or gametes, and vii)conduct sex selection in any form for surrogacy. Violation of the above will attract imprisonment for a term which may extend to 10 years with fine up to 10 lakhs rupees.b) Contravention of any provision of the Act or the Rules shall be punishable offence with imprisonment for a term up to 5 years and fine up to 10 lakhs rupees.c) The Act clearly provides only for altruistic surrogacy and violation of the same shall be subject to a term of imprisonment that may not exceed five years and a fine that may not exceed five years.In the global parlance, countries such as Russia, Ukraine, Colombia, Georgia, Mexico, and Ukraine have legalised commercial surrogacy. Australia only allows altruistic surrogacy. However, there are countries like France, Germany, Italy and Finland who have banned all forms of surrogacy. Although, commercial surrogacy was legalised in India way back in 2002, India had no previous codified regulation in this regard, and therefore the Act even with many debatable provisions, is a welcome introduction.