Surrogacy Laws in India

Surrogacy means a practice whereby one woman bears and gives birth to a child for a couple with the intention of handing over such child to the couple after the birth.

Surrogacy means a practice whereby one woman bears and gives birth to a child for a couple with the intention of handing over such child to the couple after the birth. Any child born out of surrogacy procedure shall be deemed to be a biological child of the couple and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force. There are two kinds of surrogacy:

Altruistic Surrogacy - There is no charges, expenses, fees, remuneration or monetary incentive. Only the medical expenses and the insurance are given to the surrogate mother.

Commercial Surrogacy - It includes selling or buying of human embryo or trading in the sale or purchase of human embryo by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother.

Currently, India does not have any clear enforceable laws relating to surrogacy process. In 2008, commercial surrogacy was made legal in India through Supreme Court judgment and with that came guidelines from the India Council of Medical Research. Then came, the various suggestions by Law Commission and Supreme Court of India focusing on necessity of laws relating to surrogacy. If The Surrogacy (Regulation) Bill, 2018 is passed in both the Houses, below mentioned provisions will be enforced.

WHO IS ELIGIBLE FOR SURROGACY:

  1. The couple should be legally married for at least five years.
  2. Male partner should be between 26 to 55 years and female partner should be between 23 to 50 years.
  3. They should be medically certified as an infertile couple.
  4. They should be Indian citizens.
  5. They should not have had any surviving child biologically or through adoption or through surrogacy earlier except if the child is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure.
  6. Foreign couple, homosexual couples or single parents are not allowed.
  7. Any such other conditions as may be specified by the regulations.

WHO CAN BE A SURROGATE MOTHER:

  1. Married woman having a child of her own.
  2. Between the age of 25 to 35 years.
  3. Close relative of the couple.
  4. Has obtained a certificate of medical and psychological fitness for surrogacy.
  5. She should not provide her own gametes.
  6. Cannot act as a surrogate mother more than once in her life time.

CONDITIONS FOR CONDUCTING SURROGACY:

  • Either or both members of the couple are suffering from proven infertility.
  • It is only for altruistic surrogacy purposes i.e. one without any remuneration or monetary incentive
  • It is not for commercial purposes i.e. selling or buying of human embryo or trading in the sale.
  • It is not for producing children for sale, prostitution or any other form of exploitation.
  • All the known side effects of the procedures are explained to the surrogate mother
  • The written informed consent of the surrogate mother is obtained.
  • The surrogate mother shall have an option to withdraw the practice of surrogacy before the implantation of embryo in her womb.
  • The intending couple shall not abandon the child, born out of a surrogacy procedure.
  • Any other condition or disease as may be specified by regulations.

MEDICAL AND LEGAL PROCESS CURRENTLY INVOLVED:

Since the bill has not become a law yet, the procedure according to the ICMR guidelines is followed:

  • The surrogacy clinic is chosen by the couple according to their financial status, clinic’s recognition and success rate, geographical location and other facilities.
  • These clinics conduct physical examination, complete background check, psychological and medical screening to find out if the potential surrogate candidate can cope with the emotional demands and responsibility that comes with surrogacy. The screening also involves full blood count, renal, liver and thyroid function tests and chest X-Ray.
  • Suitable surrogate mother is chosen and the embryo implantation through traditional or gestational surrogacy begins.
  • Surrogacy agreement is signed between the surrogate mother and the intended couple which includes type of surrogacy, mention of paternity, issues of motherhood, child’s custody, compensation and jurisdiction related issues.
  • Once the baby is born and delivered to the couple, the surrogate mother relinquishes all parental rights over the child. The birth certificate is issued bearing the name of the couple who commissioned the surrogacy, as parents.

After the bill gets passed, only altruistic surrogacy conducted in the duly registered surrogacy clinics will be allowed in India. If commercial surrogacy is performed, the offender shall be punished with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees. 


- As on 1st July 2019

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