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The Surrogacy (Regulation) Bill: Recently Passed in India 2021

The Surrogacy (Regulation) Bill, 2019: Recently Passed in India 2021

Rajya Sabha has green-lighted two primary and important Bills lately in 2021 to regulate the practice of Surrogacy and Assisted Reproductive Technologies in India; The Surrogacy (Regulation) Bill, 2019 and The Assisted Reproductive technology (Regulation) Bill, 2020

The Surrogacy Bill has been passed by the Rajya Sabha on 8th December, 2021 and by Lok Sabha on 17 December, 2021. According to The Indian Express, “While speaking in the Rajya Sabha, Union Health Minister Mansukh Mandaviya said both the Bills seek to curb unethical practices related to issues of sex selection and exploitation of the surrogate.”

As per NDTV,” Parliament passed the Surrogacy (Regulation) Bill, 2019, with Lok Sabha passing it with voice vote amid a protest by opposition members demanding the removal of Ajay Mishra as Union minister in connection with the Lakhimpur Kheri violence.

With the reference to The Times of India,” A rough estimates says there are about 2,000-3,000 surrogacy clinics running illegally in the country and few thousands foreign couples’ resort to surrogacy practice within India and the whole issue is thoroughly unregulated,” Vardhan said emphasizing on the need to keep a check on surrogacy to prevent exploitation of women.

This bill defines Surrogacy as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.

What the Surrogacy (Regulation) Bill, 2019 is about?

The Surrogacy regulation bill has unfolded some amendments regarding the prevention of the surrogate from exploitation, process of surrogacy, rights of the child born through surrogacy and other significant matters connected therewith or incidental thereto

  • Regulation of surrogacy and surrogacy procedures
  • Eligibility criteria for intended couple
  • Eligibility criteria for surrogate mother
  • Prohibition on commercial surrogacy
  • Written informed consent of surrogate mother
  • Prohibition to abandon child born through surrogacy
  • Prohibition of abortion
  • Offences & Penalties

The Surrogacy Act in India mentioned that Surrogacy is open for Indian married couples only”

When is Surrogacy permitted as per this Bill?

  • Intended couples have proven infertility
  • Only altruistic surrogacy, the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative
  • Written consent of the surrogate mother
  • Surrogate mother is from close relatives of intending couple
  • For any condition or disease specified through regulations

When is surrogacy prohibited?

  • Commercial surrogacy is totally ban
  • Prohibited for producing children for sale, prostitution or any other form of exploitation
  • It is prohibited for single men, foreign nationals and foreign couples 

Eligibility criteria for intended couples:

As per New Indian Surrogacy Law, intended couples must follow below rules for having a child via surrogacy. They must have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

Certificate of EssentialityCertificate of Eligibility
A Certificate of proven infertility in favor of either or both members of the intending couple from a District Medical BoardIntending couple must be Indian citizens and are married for at least 5 years
An order of the parentage and custody of the child to be born via surrogacy, has been passed by a court of the Magistrate’s courtThe age of wife: 23-50 years and husband: 26-55 years
Insurance coverage for 16 months which covers postpartum delivery complications for surrogateIntending couple do not have any surviving child biological or via adoption or surrogacy excluding a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure

Eligibility Criteria for Surrogate Mother:

  • Close relative of intended couple
  • Must be married
  • Have a child of her own
  • Age must be between 25 to 35 years on the day of implantation
  • She can only be a surrogate for once in her life
  • Surrogate mother cannot provide her own gametes for surrogacy
  • She must have a certificate of medical and psychological fitness for surrogacy

Prohibitions of abortion:

  • No person, organization, surrogacy clinic, laboratory or clinical establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorization of the appropriate authority
  • The surrogate mother will have an option to withdraw her consent for surrogacy before the embryo is implanted in her womb.

Offenses and Penalties:

  1. Penalty in following offenses: Imprisonment for 10 years and fine up to 10 lakhs
  • Advertising or undertaking Commercial Surrogacy
  • Exploiting surrogate mother
  • Abandoning, disowning or exploiting the child born out of surrogacy
  • Selling, importing or trading in human embryos or gametes for the purpose of surrogacy
  • Sex selection
  • Any subsequent offenses by same couple
  1. Penalty in following offense: Imprisonment for 5 years and fine up to 10 lakhs
  • Any medical practitioner who commits any offense
  1. Penalty in following offense: Imprisonment for 5 years and fine up to 5 lakhs
  • Any couple who takes initiative for commercial surrogacy