A Primer to the Surrogacy (Regulation) Act, 2021

A Primer to the Surrogacy (Regulation) Act, 2021

The word ‘Surrogate’ has its origin in the Latin term ‘Surrogatus’ which means a woman acting as a substitute for another woman. Surrogacy is a form of third-party reproductive practice or an arrangement which the intending parents/ parent and the surrogate mother mutually agree on that the latter shall become pregnant, gestate, and give birth to a child and shall legally and physically transfer the child to the intending parents without retaining any parentage or parental obligations

Types

  • Altruistic: Where the surrogate mother is the one, who cares for the intended person or couple and due to her concern in the interest of the person or couple, decides to help them to become parents out of sheer goodwill. The same has no space or scope for monetary compensation to the surrogate mother apart from the expenses occurred.
  • Commercial: Where the surrogate mother is paid over and above the necessary medical expenses as a matter of contract for being the surrogate mother. The surrogate mother may not be related to the intended person or couple and is purely a matter of contract between two parties.

Forms

  • Traditional: A child born through traditional surrogacy is genetically related to the surrogate mother. It involves insemination of the surrogate naturally, or artificially, with the semen of the male partner of the childless couple or a sperm donor. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a fertility clinic.
  • Gestational: Gestational surrogacy occurs in the context of assisted reproductive technologies such as in-vitro fertilization and embryo transfer where the surrogate mother is not genetically related to the child.

Important Features

  • It is vital to note that Commercial Traditional Surrogacy in any form or manner is banned within the Act. The only permitted form of surrogacy is Altruistic Gestational Surrogacy.
  • The surrogate mother is provided the option to withdraw from surrogacy at any time before implanting the human embryo in her womb.
  • surrogate mother may opt for abortion during the process of surrogacy in accordance with the procedure in the Medical Termination of Pregnancy Act, 1971.
  • Number of attempts of surrogacy procedure on the surrogate mother shall not be more than 3.
  • The intending parents/woman have to be of Indian origin.
  • According to the recently released Surrogacy (Regulation) Rules, 2022, the intending woman/couple must purchase a general health insurance in favour of the surrogate mother for a period of 36 months from an IRDA recognized company or agent.

Eligibility criterion for people wanting to avail surrogacy services

The Act states that intending couples who have a medical indication necessitating gestational surrogacy or intending woman who is a widow or divorcee between the age of 35 to 45 years can avail surrogacy services provided:

  • 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.
  • The intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier.

Surrogacy can be availed by the intending couple/woman by acquiring the Certificate of Essentiality and the Certificate of Eligibility.

Eligibility criterion for women wanting to act as surrogates

  • Must be aged between 25 to 35 years on the day of the implantation.
  • Must be ‘ever-married’ with a child of her own.
  • Must be ‘genetically related’ to the intending parents.
  • Must possess a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner.

Penalties

The Act prescribes certain penalties for the contravention of the Act.

  • undertaking or advertising commercial surrogacy.
  • exploiting the surrogate mother.
  • abandoning, exploiting, or disowning a surrogate child
  • selling or importing human embryo or gametes for surrogacy.
  • conduct sex selection in any form for surrogacy

The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The act specifies a range of offences and penalties for other contraventions of the provisions of the act.