The Surrogacy Bill and how it proposes to regulate the surrogacy market in India – India Today

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The Rajya Sabha on Wednesday gave the green light for passage of two important bills for the regulation of the practice of surrogacy and other reproductive technologies in India –the Surrogacy (Regulation) Bill, 2019 and the Assisted Reproductive Technology (Regulation) Bill, 2020.
Though similar legislations, the Surrogacy Bill has been passed as a separate legislation primarily for protection of the rights of the surrogate mother in the process. Since practices part of the Assisted Reproductive Technology (ART) Bill do not specifically require the participation of a third party (a surrogate), several other methods of obtaining a pregnancy like gamete (sperm or oocyte) donation, in-vitro fertilization and gestational surrogacy are included in the ART Bill.
The primary idea behind the bill is to prohibit commercial surrogacy, while only allowing altruistic surrogacy to take place. Altruistic surrogacy is defined in the bill as surrogacy in which no money or remuneration except medical expenses are provided for the surrogate mother by the couple. Surrogacy where the selling or buying of a human baby is involved is called commercial surrogacy and is banned in the country by way of this legislation.
The bill also lays down specific eligibility criteria for both the couple opting for surrogacy and the surrogate mother. The couple in question is required to have a “certificate of essentiality” which includes a certificate of proven infertility of one or both persons, a Court order on the parentage and custody of the child born through the surrogate, and insurance cover for the surrogate mother for 16 months including post-partum delivery complications.
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Additionally, the couple has to include a man between the ages of 26 to 55 years and a woman of 25 to 50 years of age. Both have to be Indians, married for at least five years, and should have no biological, adopted or surrogate children (unless the child is mentally/physically challenged or has a life-threatening disorder).
The strict criteria for anyone opting to be a surrogate mother are also laid down in the bill. The woman in question must be ever married (married at least once in her life) and should have her own child. She should be between 25 to 35 years of age and a close relative of the couple opting for surrogacy. Any woman agreeing to be a surrogate, cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness.
The bill also mentions that written and informed consent of the surrogate mother is necessary ahead of the procedure for surrogacy and that the surrogate can withdraw her consent anytime before the implantation of the embryo. The bill further restricts the couple opting for surrogacy from abandoning the child under any circumstances after his/her birth.
The legislation deals extensively with the regulation of surrogacy clinics in the country and restricts any surrogacy clinic from allowing commercial surrogacy. The legislation also bans the surrogacy clinics from advertising in print and electronic media and conducting sex selection or determination procedures. Any surrogacy related procedure can be carried out only by registered surrogacy clinics and the application for registration of such clinics must be made before the Appropriate Authority as formulated under the bill.
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The legislation entails the requirement for setting up of National and State Surrogacy Boards. The National Surrogacy Board shall be headed by the Minister of Health and Family Welfare and comprise of the Secretary of the Department, three women Members of Parliament and three members each from the Ministry of Women and Child Development, Ministry of Law and Justice and the Ministry of Home Affairs amongst others.
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The primary functions of the National Board will include advising the Government on policy matters, reviewing and monitoring the implementation of the law, laying down the code of conduct and supervising the State Surrogacy Boards. Similarly, State Surrogacy Boards are also required to be set up in each state which will report to the Central Board and the Government while also reviewing the appropriate authorities in the State. The appropriate authority is required to be appointed by the Central and State Governments within 90 days of the bill becoming an Act.
The following acts are recognized as offences under the law and attract the corresponding punishment:
Any medical practitioner who commits any offence under the Act shall be punished with imprisonment extending upto five years and fine extending upto Rupees ten lakhs. If a subsequent offence is reported by the same person, he shall be reported to the appropriate authority and the State Medical Council for the suspension of his registration for five years.
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Any couple who initiates commercial surrogacy shall be punished for the first offence with imprisonment upto five years and fine upto Rupees five lakhs and for any subsequent offence with imprisonment upto ten years and fine upto Rupees ten lakhs.
All the offences mentioned under the legislation are non-bailable.
WATCH: Decoded: What’s Surrogacy Bill and how it proposes to regulate surrogacy market in India

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