The Surrogacy (Regulation) Act, 2021 

• The Surrogacy (Regulation) Act, 2021 defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. 
• It was passed by the Parliament in 2021.

Highlights of the Act  

Regulation of surrogacy

• The Act prohibits commercial surrogacy, but allows altruistic surrogacy. 
  • Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.  
  • Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted

• Surrogacy is permitted when it is: 

(i) for intending couples who suffer from proven infertility; 

(ii) altruistic; 

(iii) not for commercial purposes; 

(iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.

Eligibility criteria for intending couple

• The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• A certificate of essentiality will be issued upon fulfilment of the following conditions: 

(i) a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; 

(ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and 

(iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

• The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: 

(i) the couple being Indian citizens and married for at least five years; 

(ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); 

(iii) they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and 

(iv) other conditions that may be specified by regulations.

• The law also allows single women (widow or a divorcee between the age of 35 and 45 years) to resort to surrogacy. (Single men are not eligible)

Eligibility criteria for surrogate mother

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be: 

(i) a close relative of the intending couple; 

(ii) a married woman having a child of her own; 

(iii) 25 to 35 years old; 

(iv) a surrogate only once in her lifetime; and 

(v) possess a certificate of medical and psychological fitness for surrogacy. 

• Further, the surrogate mother cannot provide her own gametes for surrogacy.   

National and State Surrogacy Boards 

• The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.  
• Functions of the NSB include, 

(i) advising the central government on policy matters relating to surrogacy; 

(ii) laying down the code of conduct of surrogacy clinics; and 

(iii) supervising the functioning of SSBs.

Parentage and abortion of surrogate child

• • A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. 
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 2021. 

• Refer Pulse October 2023 Digest edition for more details about MTP Act.   

• Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties

• The penalty for offences under the Act is imprisonment up to 10 years and a fine up to 10 lakh rupees.  

Assisted Reproductive Technology (Regulation) Act, 2021

• The Act seeks to regulate and supervise Assisted reproductive technology services.
  • Assisted reproductive technologies (ART) refer to a range of fertility treatments aimed at aiding reproduction for couples suffering from infertility or to persons who may wish to have a child through artificial methods.  
  • These arrangements include in-vitro fertilisation (fertilising an egg in the lab), gamete donation (sperm or egg), and gestational surrogacy (where the child is not biologically related to the surrogate mother).  

Key Features of the Act

Provision of ART services: 

• The Act defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.  
• These include gamete donation, in vitro fertilization, and gestational surrogacy.  
• ART services will be provided through: 
  • (i) ART clinics, which offer ART related treatments and procedures, and 
  • (ii) ART banks, which collect, screen and store gametes.   

Registration of ART clinics and banks: 

• Every ART clinic and bank must be registered under the National Assisted Reproductive Technology and Surrogacy Registry.  
• A National Registry will be established under the Act, which will act as a central database with details of all ART clinics and banks in the country.  
• Clinics and banks will be registered only if they adhere to certain standards. The registration will be valid for five years and may be renewed.  

Boards: 

• The Act provides that the National and State Boards constituted under the Surrogacy (Regulation) Act, 2021 will also act as the National and State Boards for the regulation of ART services.  
• The National Board will review and monitor the Act’s implementation and formulate a code of conduct and standards for ART clinics and banks.

Eligibility criteria for commissioning parties:  

• ART services may be commissioned by married couples or women where: 

(i) the woman is between 21 and 50 years of age, and 

(ii) the man is between 21 and 55 years.  

• Married couples must also be infertile, i.e. unable to conceive after one year of unprotected coitus or suffer from any other proven medical condition which prevents conception.  

Eligibility criteria for donors:

• A bank may obtain semen from males between 21 and 55 years of age, and eggs from females between 23 and 35 years of age.  
• The woman may donate eggs only once in her life and not more than seven eggs may be retrieved from her.  

Conditions for offering services: 

• ART procedures must be conducted only with the written consent of the commissioning parties and the donor.  
• The commissioning party will be required to provide insurance coverage in favour of the egg donor (for any loss, damage, or death).  

Rights of a child born through ART:  

• A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple.  
• A donor will not have any parental rights over the child.

Offences and penalties: 

• The penalty for offences under the Act is fine between five and ten lakh rupees for the first contravention. For subsequent contraventions, these offences will be punishable with imprisonment between three and eight years, and a fine between 10 and 20 lakh rupees.  

Why in News?

• The Union Health Ministry has asked all states and UTs about the total number of couples and single and unmarried women who have availed services under the Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technology (Regulation)  Act, 2021 to assess the functioning of the laws.