The Surrogacy (Regulations) Act, 2021

The Surrogacy (Regulations) Act, 2021

The main objective behind this legislation is to prohibit commercial surrogacy, while only allowing altruistic surrogacy to take place. The Parliament of India passed two important legislations for the regulation of the practice of surrogacy and assisted reproductive technologies in India. The Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021


Though they are similar legislations, the Surrogacy Act has been passed as a separate legislation primarily for protection of the rights of the surrogate mother in the process. Since practices part of the Assisted Reproductive Technology (ART) Act do not specifically require the participation of a third party (a surrogate), several other methods of obtaining a pregnancy like gamete (sperm or oocyte) donation, in-vitro fertilization and gestational surrogacy are included in the ART Act 2021.

REGULATION OF SURROGACY AND SURROGACY PROCEDURES

Altruistic surrogacy is defined in the legislation as surrogacy in which no money or remuneration except medical expenses are provided for the surrogate mother by the couple. Surrogacy where the selling or buying of a human baby is involved is called commercial surrogacy and is banned in the country by way of this legislation.

The legislation also lays down specific eligibility criteria for both the couple opting for surrogacy and the surrogate mother. The couple in question is required to have a “certificate of essentiality” which includes a certificate of proven infertility of one or both persons, a Court order on the parentage and custody of the child born through the surrogate, and insurance cover for the surrogate mother for 16 months including post-partum delivery complications.


Additionally, the couple has to include a man between the ages of 26 to 55 years and a woman of 25 to 50 years of age. Both have to be Indians, married for at least five years, and should have no biological, adopted or surrogate children (unless the child is Mentally/ physically challenged or has a life-threatening disorder). The strict criteria for anyone opting to be a surrogate mother are also laid down in the legislation. The woman in question must be ever married (married at least once in her life) and should have her own child. She should be between 25 to 35 years of age and a close relative of the couple opting for surrogacy. Any woman agreeing to be a surrogate, cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness.


The legislation also mentions that written and informed consent of the surrogate mother is necessary ahead of the procedure for surrogacy and that the surrogate can withdraw her consent anytime before the implantation of the embryo. The act further restricts the couple opting for surrogacy from abandoning the child under any circumstances after his/her birth.

REGULATION OF SURROGACY CLINICS

The legislation deals extensively with the regulation of surrogacy clinics in the country and restricts any surrogacy clinic from allowing commercial surrogacy. The legislation also bans the surrogacy clinics from advertising in print and electronic media and conducting sex selection or determination procedures.

NATIONAL AND STATE SURROGACY BOARDS

The legislation entails the requirement for setting up of National and State Surrogacy Boards.

OFFENCES AND PUNISHMENT

The following acts are recognized as offences under the law and attract the corresponding punishment:

Undertaking or advertising commercial surrogacy

Imprisonment extending to ten years and fine extending to Rupees ten lakhs

Abandoning, disowning or exploiting the child born out of surrogacy - Imprisonment extending to ten years and fine extending to Rupees ten lakhs

Exploiting the surrogate mother - Imprisonment extending to ten years and fine extending to Rupees ten lakhs

Selling, importing or trading in human embryos or gametes for the purpose of surrogacy - Imprisonment extending to ten years and fine extending to Rupees ten lakhs

Conducting sex selection - Imprisonment extending to ten years and fine extending to Rupees ten lakhs


Any medical practitioner who commits any offence under the Act shall be punished with imprisonment extending upto five years and fine extending upto Rupees ten lakhs. If a subsequent offence is reported by the same person, he shall be reported to the appropriate authority and the State Medical Council for the suspension of his registration for five years.

Any couple who initiates commercial surrogacy shall be punished for the first offence with imprisonment upto five years and fine upto Rupees five lakhs and for any subsequent offence with imprisonment upto ten years and fine upto Rupees ten lakhs.

All the offences mentioned under the legislation are non-bailable.