The surrogacy (Regulation) Act was enacted in the year 2021 and came in to force in the year 2022. There are Eight chapters in it. Section 2 (zd) defines Surrogacy and Chapter III, Section 4 speaks about Regulation of surrogacy and surrogacy procedures.
What is Surrogacy?
Section 2(zd) defines surrogacy, “surrogacy” means 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.
Regulation of surrogacy and surrogacy procedures :
According to Section 4 of the said Act, On and from the date of commencement of this Act, —
(i) No place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clause (iii).
(ii) No surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:
(a) when an intending couple has a medical indication necessitating gestational surrogacy
Provided that a couple of Indian origins or an intending woman who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.
For the purposes of this sub-clause and item (I) of sub-clause (a) of clause (iii) the expression “gestational surrogacy” means a practice whereby a surrogate mother carries a child for the intending couple through implantation of an embryo in her womb and the child is not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for commercialization of surrogacy or surrogacy procedures; (d) when it is not for producing children for sale, prostitution or any other form of exploitation; and
(e) any other condition or disease as may be specified by regulations made by the Board;
(iii) No surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely -
(a) the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfillment of the following conditions, namely -
(I) a certificate of a medical indication in favor of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.
For the purposes of this item, the expression “District Medical Board” means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the district and comprising of at least two other specialists, namely, the chief gynaecologist or obstetrician and chief pediatrician of the district.
(II) an order concerning the parentage and custody of the child to be born through surrogacy, has been passed by a court of the Magistrate of the first class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be the birth affidavit after the surrogate child is born; and
(III) an insurance coverage of such amount and in such manner as may be prescribed in favour of the surrogate mother for a period of thirty-six months covering postpartum delivery complications from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999);
(b) the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfillment of the following conditions, namely: —
(I) No woman, other than an ever-married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;
(II) A willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act:
Provided that the intending couple or the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother;
(III) no woman shall act as a surrogate mother by providing her own gametes;
(IV) no woman shall act as a surrogate mother more than once in her lifetime:
Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and
(V) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner;
(c) an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely:--
(I) the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;
(II) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier:
Provided that nothing contained in this item shall affect the intending couple who have a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and
(III) such other conditions as may be specified by the regulations.
5. Prohibition of conducting surrogacy — No person including a relative or husband of a
surrogate mother or intending couple or intending woman shall seek or encourage to conduct any
surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of section 4.
6. Written informed consent of the surrogate mother.—
(1) No person shall seek or conduct surrogacy procedures unless he has —
(i) explained all known side effects and after-effects of such procedures to the surrogate mother concerned; and
(ii) obtained in the prescribed form, the written informed consent of the surrogate mother to undergo such procedures in the language she understands.
(2) Notwithstanding anything contained in sub-section (1), the surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of the human embryo in her womb.
7. Prohibition to abandon child born through surrogacy.— The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like.