Surrogacy laws in India
This Article is authored by Ms. Shweta Tewari (Managing Partner) & Ms. Nidhi Bohra (Associate) at SGT Associates (Lawyers & Advocates) | June 7, 2023 at IST
The practice of surrogacy in India is regulated under the Surrogacy Regulation Act, 2021 (Act) and Assisted Reproductive Technology Regulation Act, 2021. Under the Act, surrogacy is defined to mean a practice whereby one woman bears and gives birth to a child for an intending couple and intends to hand over the child to them after birth. Further, Assisted Reproductive Technologies are techniques that attempt to attain pregnancy by handling the sperm or the oocyte outside the human body and transferring into the reproductive system of a women.
- Eligibility requirements:
The intending couple must:
a. be married and must have Indian citizenship.
b. be between 26 and 55 years of age (husband) and 23 and 50 years of age (wife).
c. not have surviving child (biological or adopted or surrogate) except such child who is physically or mentally challenged or suffering from fatal disease or life threatening disorder and (approved by appropriate authority with due medical certificate from District Medical Board) .
d. Other conditions as may be specified by regulations.
The surrogate must:
a. be a mother and should have a child of her own.
b. be between the age of 25-35 years.
c. not have been a surrogate before.
d. be a close relative of the intending couple.
e. possess a certificate of physical and medical fitness.
The intending women (who intends to avail surrogacy) must:
a. be a widow or divorcee.
b. be between 35-45 years of age.
- Certificate of essentiality and Certificate for eligibility: is issued by the appropriate authority in the manner as delineated herein below: (a) Upon fulfillment of the following conditions, a certificate of essentiality is issued: (i) certificate of medical indication necessitating gestational surrogacy in favour of one or both members of the intending couple or the intending women from a District Medical Board. (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court. (iii) insurance covering postpartum delivery complications for a term of 36 months (b) Certificate of eligibility is issued upon fulfillment of the eligibility requirements as listed above.
- Purposes for which surrogacy is permitted : (i) for intending couple who suffer from proven infertility; (ii) for altruistic (no monetary compensation to surrogate other than medical expenses, other prescribed expenses and insurance); (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; (v) for any condition or disease specified through regulations;
- Commercial surrogacy: is strictly prohibited, which includes commercialization of services of surrogacy or its procedures or its component services or its component procedures. Except for the medical expenses and such other prescribed expenses for the surrogate mother, including the insurance coverage, no rewards, payments, benefits or fees shall be paid to her. It is punishable with imprisonment for a term of atleast 10 years and fine of upto Rs. 10 lakhs.
- Parentage and abortion of surrogate child: a child born out of surrogate shall be deemed to be the biological child of the intending couple. Abortion of the surrogate child shall require (i) the consent in writing of the surrogate mother; (ii) authorization in this respect from the appropriate authority and (iii) compliance with the provisions of Medical Termination of Pregnancy Act, 1971. Further, the surrogate mother can withdraw from surrogacy before the implantation of the embryo in her womb.
- Offences and Penalties: under the Act include (a) commercial surrogacy, abandoning a surrogate child, exploiting the surrogate mother and/or surrogate child, selling /importing human embryos or gametes, conducting sex selection; which shall be punishable under with imprisonment upto 10 years and fine upto Rs. 10,00,000 (Rupees Ten Lakhs). (b) any registered medical practioner, gynecologist, pediatrician, embryologist or any person who owns a surrogacy clinic or is employed therein or a centre or laboratory shall be punished with imprisonment upto 5 years and fine upto Rs. 10,00,000 (Rupees Ten Lakhs), in the event of contravention of the provisions of the Act. (c) not following altruistic surrogacy or conducting surrogacy procedures for commercial purposes shall be punishable with imprisonment upto 5 years and fine upto Rs. 5,00,000 (Rupees Five Lakhs