This article is written by Anjali Sinha, a legal professional. This article provides a detailed study of the history and evolution of the Surrogacy Act. It also deals with some important provisions, their importance, and connected loopholes that are required to be overcome for the smooth functioning of the provisions of the Surrogacy Act in India.
It has been published by Rachit Garg.
Table of Contents
Surrogacy means the surrogate mother agrees to carry the child for another person. After the birth of a child, the biological mother leaves the care and custody to the intended parent or parents. Surrogacy involves complicated legal and medical steps that must be followed. It is important to know about the process, seek professional advice, and build a support network with Fertility World Surrogacy Center India. However, the major question arises as to whether India allows commercial surrogacy. The answer is an unequivocal yes. Commercial surrogacy has been allowed in India since 2002.
The Surrogacy Act of 2021 prohibits and punishes commercial surrogacy, permitting it only in instances of altruism. This provision has the effect of preventing surrogates from receiving any financial compensation for their role, with the exception of insurance and medical coverage. In addition, the Surrogacy Act specifies the conditions under which surrogacy is permitted, the criteria for the surrogate and the intended parents, and a regulatory framework for surrogacy clinics.
History and Evolution of the Surrogacy Act
According to a 2012 Confederation of Indian Industry report, the size of the Indian surrogacy industry was $2 Billion annually. And it’s estimated that more than 3,000 fertility clinics around the country are doing it. The unregulated business of surrogacy has raised concerns such as unethical practices in which brokers and commercial agencies have profited the most, exploitation of surrogate mothers, abandonment of children born from surrogacy, riots like organ trade, importation of embryos, etc. to regulate surrogacy in the country has entered into validity.
Recommendations of the Law Commission of India
- Use of surrogacy mainly by foreigners.
- Lack of proper legal framework.
- The exploitation of surrogate mothers as they may have been forced to practice surrogacy due to poverty and lack of education.
Therefore, by a notification in 2015, the Government of India banned surrogacy for foreign nationals.
In the Lok Sabha, the first Surrogacy (Regulation) Bill was introduced in November 2016.
Below are some of the key points of the Bill:
- Commercial surrogacy must be completely banned.
- The surrogate mother must be a close relative of the applicants.
- Couples must prove they are infertile.
- All surrogacy clinics would have to be registered.
- All registered clinics should keep surrogacy records for 25 years.
- No single parent, couples living in India or homosexuals can become surrogate parents through surrogacy.
- Women who were not married or childless could not become surrogate mothers either.
However, this law failed to be enforced and lapsed after the dissolution of Parliament.
The Surrogacy (Regulation) Bill, 2019 was introduced in the Lok Sabha on 15 July 2019 and passed by the Lok Sabha on 5 August 2019. Further, it was referred to a select committee for further discussion.
The Surrogacy (Regulation) Bill, 2019
There is a need for the constitution of surrogacy committees at the national and state levels to oversee all the regulations and related procedures. The committee will only allow ethical, altruistic surrogacy.
Eligibility for surrogacy:
The marriage solemnised must have been completed five years. Further, a certificate of necessity, as well as a certificate of eligibility, are required to be submitted if and when required. They must also undertake not to abandon a child born through surrogacy.
Criteria for a surrogate mother:
- The woman, a close relative of the intended couple, must be married with a child of her own and should be between 25-35 years of age. No previous surrogacy.
- Insurance cover for a certain period to cover not only the period of pregnancy but also the surrogate mother afterwards.
- The Bill also seeks to regulate the operation of surrogacy clinics.
Furthermore, surrogacy clinics in the country need to be registered under the Act to avoid cancellation or suspension of their service. However, sex selection is not allowed.
Reasons for banning Indian surrogacy:
When Indian surrogacy first reached its peak, the industry had no regulations, and unsafe and unethical practices developed in response. Surrogates are exposed to unethical treatment, poor living conditions, and exploitation. Due to demand from international intended parents, Indian surrogacy agencies effectively operated “baby factories”.
Here, Indian women were forced to live until they gave birth to the children of their intended parents, without family assistance, and abandoned them when they were pregnant. Surrogates in India are also said to receive a fraction of what the intended parents paid to the surrogacy agency, about $4,000 to $5,000 in compensation. Surrogates were used in commercial surrogacy. Financial gain, poverty and lack of education attracted them again and again to the process of surrogacy. As a result, their health deteriorated as they effectively became “baby-making machines” year after year. Surrogate mothers do not even receive the support services they need for themselves and their families during this emotional journey. For all these reasons, the Government of India has tried to take steps to make the process safe for all concerned people.
Surrogacy Regulation Act 2020
On February 26, 2020, the Union Cabinet approved the new Surrogacy Regulation Act, 2020, allowing any woman who wishes or has the willingness to become a surrogate mother. The Bill had been put on the back burner due to the COVID-19 pandemic, but thereafter it was expected to be introduced as Bill 2021 in the lower house of the Indian Parliament in its upcoming session. The Bill was a significant improvement to overcome the loopholes of the Surrogacy Regulation Act of 2019 but continues to adopt a needs-based approach rather than a rights-based approach, which is pending to be enacted into law before obtaining presidential assent and serving its purpose.
Some of the main features of the proposed surrogacy legislation are:
- Establishment of regulatory bodies: The Bill proposes to regulate surrogacy by establishing a National Surrogacy Board at the central level, a State Surrogacy Board at the state level and one or more competent authorities or agencies for each Union Territory.
- Specify minimum standards for physical infrastructure, laboratory and diagnostic equipment and professional staff to be employed by surrogacy clinics.
- Ban on commercial surrogacy: The Law Commission of India has recommended a ban on commercial surrogacy by enacting appropriate legislation in its 228th report.
- It only allows altruistic surrogacy to stop the growth of the uterus rental industry and prevent the exploitation of surrogate mothers.
- Banning surrogacy for commercial purposes can also be understood to mean a ban on fashionable surrogacy when it is just for convenience rather than a medical necessity.
Countries like Australia, New Zealand, the United Kingdom, Canada, Netherlands, South Africa, etc. are also following the same.
- Omission of the definition of infertility: The Surrogacy (Regulation) Act 2019 required at least one member of an intended couple to suffer from “proven infertility” to be eligible for the surrogacy process. However, the 2020 Bill modified possible surrogacy for couples if the prospective couple has a medical indication requiring gestational surrogacy.
- An Indian woman who is widowed or divorced between the ages of 35 and 45 and who intends to use surrogacy, opts for surrogacy.
The Surrogacy (Regulation) Act, 2021
Under the Surrogacy (Regulation) Act 2021, a widowed or divorced woman between the ages of 35 and 45, or a married couple, defined as legally married, can use surrogacy if she has a medical condition that requires this option. It also bans surrogacy for commercial purposes, which is punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh. The law only allows altruistic surrogacy only when there is no exchange of money and when the surrogate mother is genetically related to those looking for a child.
Important provisions of the Act
This Act consists of eight chapters and 54 sections that deal with the regulation of surrogacy in India. The Surrogacy (Regulations) Act, 2021, received the President’s assent on 25th December 2021.
Section 2 of the Act deals with the various definitions under the Act:
- Section 2(b) defines the term altruistic surrogacy which means that only medical expenses, insurance coverage and other prescribed expenses will only be provided to the surrogate mother irrespective of any extra charges, expenses, fees, remuneration or monetary incentives of any nature.
- Section 2(g) defines the term ‘commercial surrogacy’ which means providing all kinds of monetary incentives whether in cash or kind. However, the same is not allowed to be practised.
- Section 2(h) provides the meaning of ‘couple’ i.e., a legally married couple wherein a man and a woman must be aged above 21 years and 18 years.
- Section 2(r) provides the meaning of ‘intending couple’ i.e., the couples who are intending to become a parent through the procedure of surrogacy and they must be between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as per Section 4(iii)(c)(I).
- Section 2(s) describes the meaning of ‘intending women’. The term includes women between the age of 35 to 45 years who is either a widow or divorced and the one who intends to avail of surrogacy.
- Section 2(zd) defines the term ‘surrogacy’ which means a procedure in which a woman carries the child and gives birth to a child of an intending couple and thereafter handovers the child to intending couples after the child is born.
Regulation of surrogacy clinics
Section 3 of the Act provides the regulation of surrogacy clinics:
- Every surrogacy clinic must be registered under the Act to conduct the procedure of surrogacy.
- Commercial surrogacy is strictly banned and in no case, it will be allowed or practised by surrogacy clinics, paediatricians, gynaecologists or any registered medical practitioner.
- All the procedures related to surrogacy must be conducted at registered surrogacy clinics and no person shall be employed on an honorary basis.
- In no case, sex selection is allowed or storage of human embryos or gamete is allowed for the purpose of surrogacy.
Regulation of surrogacy and surrogacy procedures
As per Section 4, if a surrogacy clinic is not registered under this Act, it cannot participate in, collaborate with, or assist in any way with activities related to surrogacy and surrogacy procedures; or employ, cause to be employed, or solicit the services of anyone who lacks the required qualifications, whether on an honorarium or for payment.
Any person, surrogacy clinic, paediatrician, gynaecologist, embryologist, or registered medical practitioner shall not engage in, offer, promote, associate with, or use commercial surrogacy in any form; or store a human gamete or embryo for surrogacy, with the exception of storage for other legal uses like sperm banks, IVF, or medical research; or carry out sex selection for surrogacy or cause it to be carried out.
Written consent of the surrogate mother
As per Section 6, the surrogate mother in question must be informed of all known side effects and effects of these procedures, and the surrogate mother must provide written informed consent in the language she understands.
Prohibition to abandon a child
Section 7 provides a prohibition to abandoning a child born out of surrogacy on the ground of a birth defect, any genetic defect or any other medical condition whether in India or outside India.
Rights of a surrogate child
Section 8 of the Act provides that the child born out of surrogacy will be considered to be a biological child of the intending couple and shall have all the rights that a natural child shall have under any law for the time being in force.
Section 10 of the Act describes that no organization or person can force a surrogate mother to abort at any stage except under conditions that may be prescribed in certain circumstances.
Registration of surrogacy clinics
As per Section 11, it is necessary for a surrogacy clinic to be properly registered under this Act before it can offer any kind of surrogacy services or establish a surrogacy clinic. Each surrogacy centre that is directing surrogacy or surrogacy strategies, halfway or only, will, within a time period of sixty days from the date of the arrangement of suitable power, apply for enlistment.
Certificate of registration
Section 12 of the Act provides that after proper scrutiny and satisfaction that the applicant has complied with all the requirements and has made payment of fees as prescribed, the appropriate authority shall provide the certificate of registration to the applicant.
However, if the appropriate authority is of the opinion that the applicant has not met the requirements, then the application can be rejected by recording reasons in writing for such a rejection.
Cancellation or suspension of registration
Chapter IV provides for the registration of surrogacy clinics, as no person is permitted to establish a surrogacy clinic without being registered under the Act. Also, the registration can be cancelled or suspended under Section 13 upon receipt of the complaint or suo motu. The liability lies on the clinic to show cause as to why registration should not be cancelled or suspended as per the reason mentioned in the notice.
As per Section 14, an appeal can be made within a period of 30 days from the date of communication of the order of rejection.
Establishment of Registry
Section 15 provides for the establishment of the National Assisted Reproductive Technology and Surrogacy Registry. Further, Section 16 provides that the bodies registered under Section 15 of the Act must also be registered under Section 9 of the Assisted Reproductive Technology Act.
As per Section 17, the establishment of a national registry for surrogacy and assisted reproductive technology: The National Assisted Reproductive Technology and Surrogacy Registry will be the name of the registry that will be used to register surrogacy clinics under this Act.
Meeting of Board
As per Section 19, a meeting is to be held once every six months, which will be presided over by the chairperson and, in his absence, by the vice-chairperson. All issues raised in the meeting are to be decided by the majority vote.
Disqualification of members
Section 21 provides for the disqualification of members on the grounds of insolvency, moral turpitude, physical or mental incapability, prejudicial to the public interest, or any such ground as deemed fit by the Central Government to prove the misbehaviour or incapacity to be a member. The member shall be removed only by order of the Central Government in that regard.
As per Section 24, an ex officio member can be re-appointed for two consecutive terms.
Functions of Board
Section 25 provides the functions of the board:
- To advise the Central Government in matters relating to surrogacy.
- The implementation of the Act must be reviewed and monitored by the board periodically.
- A code of conduct is to be provided for the person working at surrogacy clinics.
- Supervising the functioning of clinics, boards and registries.
- Such other functions may be prescribed.
Appointment of Appropriate Authority
Section 35 of the Act provides that the Central Government within 90 days of the commencement of the Act should appoint an authority for each territory and the State Government should appoint at least one authority for the state or any part of the state.
Power of appropriate authorities
Section 37 provides the power of the appropriate authority, mentioning the power to summon a person who is in violation of the provisions of the Act, search any suspected place, production of documents relating to violation of any provision of the Act and any other power as may be prescribed for time to time as per the case and situation.
Punishment for not allowing altruistic surrogacy
As per Section 40, if any intending couple is not allowed to follow the procedure of altruistic surrogacy, then the person, clinic, laboratory, or any authorised person or authority is liable for imprisonment, which may be extended to five years, and a fine up to five lakh rupees for the first offence, and for a subsequent offence, a punishment of imprisonment up to ten years and a fine up to ten lakh rupees.
Classification of the offence under the Act
According to Section 43, every offence under this Act shall be cognizable, non-bailable and non-compoundable.
Chapter VIII deals with the power to make rules, regulations, search and seizure, the power to remove difficulties, and other transitional provisions.
Maintenance of records
As per Section 46, all records are to be preserved for a period of 25 years. However, in cases of criminal or other proceedings, it shall be preserved until the final disposal of such proceedings. The records shall be made available for inspection if and when required.
Power to search and seize records
If the appropriate authority under Section 47 has a reason to believe that an act has been conducted, then a search and seizure of records can be conducted.
Advantages of the Act
For most surrogates, the ability to bring life to another family is the most beautiful and greatest thing one can imagine. Naturally, most women want to weigh the pros and cons of being a surrogate mother before embarking on this journey. While most surrogates consider the experience of carrying a child for a childless couple as something extraordinary and wonderful, there are definitely some minor downsides to being a surrogate that you need to consider as well.
Women who embark on the journey of a surrogate have various reasons for doing so. Most surrogate mothers find the opportunity to contribute to the joy of another family an extremely satisfying and highly rewarding experience. Here are some other benefits and advantages of making a life-changing decision.
- Surrogacy is a fulfilling experience
There is nothing like carrying a child for someone who is unable to do so themselves. Most substitutes look back on their experiences with a sense of fulfilment and accomplishment. Surrogates are usually women who are caring and compassionate with a strong urge to help those in need. Enabling those struggling with infertility to have a child and complete their family can be a life-changing experience that brings happiness and satisfaction to all involved.
- Surrogates are a strong support group
The journey to becoming a substitute can be challenging. Potential surrogates must agree to background checks, medical examinations, and psychological evaluations. It’s a lot to take in. Being able to share your experiences with other women involved in the process is supportive, encouraging, and fun.
- Surrogates can experience pregnancy again
Most women who decide to become surrogates actually enjoy their pregnancies. One of the requirements for a surrogate mother is that she needs to already be a mother. When you choose to carry for someone else, you can relive the experience of being pregnant without having to raise the baby yourself.
- Substitutes are generously compensated
Gestational carriers receive financial compensation for their commitment, time and associated risks. Expenditures related to travel and medication are also covered. Another advantage is obtaining health insurance for the entire duration of the replacement trip. The repayment you receive can help you achieve your personal goals, such as buying a home, paying for education or paying off debt.
- Substitutes are protected by law
Once a match is made, legally binding contracts are made to protect both the intended parents and you as the surrogate. The contract provides clauses that bifurcate the duties and responsibilities of both parties to ensure a healthy pregnancy. The contract will also reinforce the fact that you have no responsibility for the child after birth.
Disadvantages of being a surrogate mother
Although there are many benefits to gestational surrogates giving the gift of life to expectant couples, there are also some risks and disadvantages to consider.
Surrogacy is physically and mentally demanding. Potential surrogates must undergo a series of medical tests and be screened to make sure they are healthy enough to carry a baby to full term. You will have to deal with all of the physical demands of pregnancy, including attending appointments and going through the treatment. Choosing to be a surrogate mother is also an emotional challenge.
Carrying someone else’s baby is a huge responsibility, and most surrogate mothers experience ups and downs along the way. It is important that you take advantage of any counselling services offered or attend support groups when you need emotional help.
- Surrogacy is a lengthy process
The process of becoming a surrogate mother is quite lengthy and requires commitment. Between completing the online application and the birth of the baby, there are a number of follow-up appointments that you must attend. The legal contract and the medical procedure take several months to complete. Surrogates should avoid making major travel plans outside of their state or country during the process, as it takes at least a year to complete.
- Being a surrogate has health risks
Like any other pregnancy, there are always risks associated with carrying a baby. It is possible that you will not get pregnant the first time you transfer, and there is the possibility of pregnancy complications that could have a negative effect on your health. If you are planning to embark on this journey, you need to consider whether you are ready to take these risks and how to deal with them emotionally.
- Surrogates need medication to get pregnant
Medicines are part of every gestational surrogacy cycle. Surrogates may receive birth control. Other medications may include estrogen and progesterone. As a surrogate, you will also have blood drawn and undergo ultrasound checks to make sure your cycle is working properly. Some women are slightly surprised by the amount of medication prescribed to prepare for the transfer and during pregnancy. It is important to remember that this is all necessary to ensure a healthy pregnancy and birth.
- Surrogacy is still stigmatised
Although most people’s attitudes towards surrogacy are becoming more positive, there are still those who are negative about the idea of surrogacy. When you decide to help someone become a parent, it’s important to realise that not everyone can understand your decision. Lack of information, misunderstandings, and social stigma can mean that some loved ones will not give you the support you hoped for.
Loopholes in the Act
A few loopholes under the Act are as under:
- Surrogate and child exploitation:
It could be argued that the state must protect the child’s right to be born and put an end to the exploitation of poor surrogate mothers. However, the current law fails to strike a balance between these two goals.
- Reinforces patriarchal norms:
The Act reinforces the traditional patriarchal norms of our society that do not attach any economic value to women’s work and directly affect women’s basic reproductive rights under Article 21 of the Constitution.
- Denies legitimate income to surrogates:
Banning commercial surrogacy also denies surrogates a legitimate source of income, further limiting the number of women who are willing to be surrogates. Overall, this move indirectly denies children to couples who choose to adopt parenthood.
- Emotional Complications:
In an altruistic surrogacy, having a friend or relative as a surrogate mother can lead to emotional issues not only for the intended parents but also for the surrogate child because there is a great risk to the relationship during the surrogacy process and after the birth. Altruistic surrogacy also limits the intended couple’s choice in choosing a surrogate, as very few parents are willing to go through the process.
- No third-party involvement:
Altruistic surrogacy does not involve any third party. The involvement of a third party ensures that the expectant couple will bear and assist with medical and other miscellaneous expenses during the surrogacy. In general, a third party helps both the intended couple and the surrogate mother through a complex process that may not be possible in altruistic surrogacy.
Thus, the Surrogacy Act of India prohibits commercial surrogacy and the payment of monetary compensation to the surrogates. This ban goes against the decision in Suchita Srivastava v. Chandigarh Administration, 2009, which said that Article 21 of the Constitution of India covers the right to choose one’s own reproductive options. The prohibition on commercial surrogacy prevents women from using their reproductive abilities for financial gain by ignoring the mental, physical, and emotional labour and medical costs they face during and after the pregnancy.
In its 102nd report in the year 2016, the Parliamentary Standing Committee on Health and Family Welfare called for adequate compensation for surrogates rather than the repeal of the ban on commercial surrogacy. This argument, as well as Article 23 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Economic, Social, and Cultural Rights, which mandate a fair payment in exchange for human labour, are ignored by the Surrogacy Act.
Since oocyte donors play a crucial role in the surrogacy process, statutory reforms should protect their rights. The Surrogacy (Regulation) Act, 2021, must reflect the rights to equality and parenthood of members of the LGBTQIA+ community who wish to participate in surrogacy. The disclosure of donors’ identities should be voluntary. At last, it is important that the arrangements for granting payment to proxies be made to safeguard the powerless against abuse.
Assisted Reproductive Technology (ART) Act
The ART Act was introduced in the Lok Sabha in September 2020 and has been referred to the Standing Committee for further consideration. Subsequently, together with the Surrogacy Act, this Act was passed in both houses at the winter session of parliament in December 2021. This law also entered into force in January 2022.
What is ART
ART is defined as any technique used to get positive pregnancy results by manipulating a sperm or egg cell outside the human body and transferring the embryo into the female reproductive system. These include sperm donation, in vitro fertilisation (IVF), in which the sperm are fertilised in a laboratory, and surrogacy, in which the child is not biologically related to the surrogate.
Rules for ART clinics and banks
The National Registry of Banks and Clinics of India maintains a central database containing comprehensive information about ART clinics and banks. Clinics and banks like these can renew their registrations every five years for an additional five years. If the institution breaks the law, it can be taken away or suspended.
Clinics are not allowed to deliver a child of pre-determined sex and must test for genetic diseases before implanting an embryo into a woman’s body.
Conditions for sperm donation and ART services
Registered ART banks may screen, collect, and store sperm from men between the ages of 21 and 55. It can also store eggs from women between the ages of 23 and 35. According to the law, the donor must be married with at least one child of her own, aged at least three years. A woman can donate up to seven eggs only once in her lifetime. The bank cannot supply sperm from one donor to more than one couple.
Such ART procedures require written informed consent from both the couple and the donor. A couple requesting an ART procedure must provide the donor with insurance coverage in the event of loss, damage, or death of the donor.
As mentioned above, clinics and banks are not allowed to advertise or offer gender-selective ART. This offence is punishable with imprisonment ranging from 5 to 10 years and/or a fine ranging from Rs.10 to 25 lakhs.
A child born through the ART procedure will be considered the biological child of the couple in the eyes of the law and have all such rights. The donor does not retain any parental authority over the child.
Regulation of ART processes
A national and state board established under the Surrogacy Act may regulate ART services. These boards are responsible for advising the government on policy, reviewing and monitoring the enforcement of laws, and developing a code of conduct for ART clinics and banks.
Offences under this Act include abandonment or exploitation of children born through ART; sale, purchase, or trade-in embryos; exploitation of the couple or the donor in any form; and transferring the embryo to a man or animal. A fine of Rs 5 to 10 lakh can be imposed for the first time for such offences. Other offences are punishable by imprisonment for 8 to 12 years and a fine of Rs 10 to 20 million.
- In the case of Baba Manji Yamada v. Union of India (2009), a child was born to an Indian surrogate mother for a Japanese couple who separated before the child’s birth. The biological father wanted to take the child with him to Japan, but there was no legal provision for such a case. The Supreme Court of India then intervened and gave the child to her grandmother. This case spurred the Government of India to enact a law regulating surrogacy.
- In the case of Jan Balaz v. Anand Municipality (2008), the Gujarat High Court held that the birth certificate of a child born through surrogacy will carry the name of the surrogate mother. The child was born to a surrogate mother of Indian nationality. However, the child’s father, who asserted the rights, was a German national. After the birth of the child, Germany refused his citizenship. The whole matter was more complicated as there was no precedent regarding a foster child’s citizenship prior to the case. The case grew exponentially as it progressed. In the present case, the identity of the two children had already been established as Indian nationals by birth and thus Indian nationals within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.
The proposed surrogacy law is a unique combination of social, moral, ethical, legal, and scientific issues and is an effective attempt to harmonise the conflicting interests involved in the surrogacy process in order to ensure the improvement of the child’s condition while protecting the interests of the surrogate mother and clients. Strong penalties under the proposed legislation will act as a deterrent to potential violators and ensure that all parties proceed fairly and proportionally. However, it is prudent to pass the Assisted Reproduction (ART) Bill 2020. Before the Surrogacy Regulation, Bill 2020 was passed as it would help create a regulatory mechanism for ART clinics as a whole and regulate processes such as surrogacy and abortion in a better way.
Frequently Asked Questions (FAQs)
What is gestational surrogacy?
It is also known as host surrogacy, and was first carried out in 1986. The entire procedure begins with the creation of an embryo using IVF technology, which is then inserted into a surrogate mother’s womb
Which Act governs abortion cases?
Cases related to abortion are to be governed only by the Medical Termination of Pregnancy Act of 1971.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: