Surrogacy Bill

The Surrogacy (Regulation) Bill, 2020 became an Act on the 25th of December, 2021. Both Rajya Sabha and Lok Sabha passed the Surrogacy Bill and the President gave assent to it.  There was need for such a law as India is a growing hub for ART processes and commissioning of surrogate mothers.

What Is Surrogacy?

The Act 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”.

Surrogacy is of two types:

1. Altruistic surrogacy: This refers to the surrogacy where no renumeration is given to the surrogate mother, with the exception of medical expenses and insurance coverage.
2. Commercial surrogacy: This refers to the commercialisation of surrogacy services/gamete trade/payment to the surrogate mother, except for medical expenses and insurance coverage.

The Act allows only altruistic surrogacy, and bans commercial surrogacy making it a punishable offence.

Eligibility of a Surrogate Mother:

The Act defines a surrogate mother as “a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb…”

The surrogate mother needs to fulfil the following conditions to be eligible:

1. She should be married at least once.
2. She must have a child of her own.
3. She must be between the ages of 25 to 35 years on the day of implantation.
4. She must be willing to be a surrogate.
5. She cannot provide her gametes.
6. She may be a surrogate mother only once in her lifetime.
7. She must produce a medical and psychological fitness certificate for surrogacy and related procedures from a registered medical practitioner.

People Also Use This: Find Lawyers in Your City For Any Legal Advices

Eligibility of an Intending Couple/Woman:

The Act defines an intending couple as “a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy and an intending woman as “an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.”

An eligibility certificate is issued to the couple if they fulfil the following conditions:

1. Marriage between the ages 23-50.
2. No surviving biological child or through adoption or surrogacy.
3. Such other conditions as regulations may specify.

Further, a certificate of essentiality will be issued on the fulfilment of the following conditions:

1. A certificate must be issued from the District Medical Board to affirm the medical need favoring the infertility of either one or both members of the intending couple necessitating gestational surrogacy.
2. An order concerning the custody and parentage of the child shall become the birth affidavit after the child's birth.
3. Insurance coverage prescribed in favour of the surrogate mother for thirty-six months post-delivery.

Other Significant Features:

1. Supervisory Bodies: The Act also establishes supervisory boards, including the National and State Assisted Reproductive Technology and Surrogacy Boards.
2. Penalties: Penalties have been issued for violation of the Act's provisions and commercial surrogacy.
3. Surrogacy clinic registration: Surrogacy clinics must be registered with the relevant authority before performing surrogacy treatments. Clinics have 60 days from the date of the appropriate authority's appointment to apply for registration.
4. Parentage and abortion of surrogate children: A child born through a surrogacy operation will be considered the intended couple's biological child. Abortion of the surrogate child requires the surrogate mother's written agreement and the approval of the authorised authority.

Issues and Criticism:

• Ban on Commercial Surrogacy: Understandably, the ban on commercial surrogacy is an attempt to curb exploitation of the women, but it is unrealistic to expect the women to provide these mentally and physically tasking services free of cost. Rather than a complete ban, it must be regulated.
• Patriarchy: Women may be pressured to become surrogates by their family members as in many households in India; women do not have the final say.
• Under the definition of ‘couple’ in the Act, only Indian married couples can benefit from surrogacy, restricting non-citizens. Once again, a ban cannot prevent the practice; it only turns a blind eye to it.