India was considered the hub for commercial surrogacy for couples from different countries which resulted in reported incidents of unethical practices by several clinics across the country resulting in exploitation of surrogate mothers and abandonment of children born out of surrogacy. The print and the electronic media strongly criticised the government for not taking any action against such practices. The Law Commission of India has, in its 228th Report, also recommended for prohibition of commercial surrogacy by enacting a suitable legislation.

This led to the introduction of the Surrogacy (Regulation) Bill, 2016 in the Parliament, to regulate surrogacy services in the country, to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

The Surrogacy (Regulation) Bill, 2018 (“Bill”), with slight amendments to the 2016 Bill, received its nod from the Lok Sabha on December 19, 2018, which extends to the whole of India except the State of Jammu and Kashmir. The Bill is yet to receive the approval from the Rajya Sabha and the President’s consent after which it shall be notified as an Act.

The Bill contains a total of fifty-one (51) sections divided into eight (8) chapters. The following are the highlights from Chapters I to III of the Bill:

  • Existing / new surrogacy clinics shall get registered under the Surrogacy (Regulation) Act, 2018 (“Act”);
  • Commercial Surrogacy in any form is prohibited;
  • Place where surrogacy or surrogacy procedures shall be conducted, shall be registered;
  • Advertisements / promotions aimed at inducing a woman to act as a surrogate mother or promoting a surrogacy clinic for commercial surrogacy are strictly prohibited.
  • Abortion shall not be cause during the period of surrogacy:
    • without the written consent of the surrogate mother and
    • on authorisation of the same by the appropriate authority concerned (within a period of ninety days from the date of commencement of this Act, the Central Government in the case of Union Territories and the State Governments, for their respective states shall appoint one or more appropriate authorities);
  • Purpose of Surrogacy:
    • when either or both members of the couple is suffering from proven infertility;
    • when it is only for altruistic surrogacy purposes;
    • when it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures;
    • when it is not for producing children for sale, prostitution or any other form of exploitation; and
    • any other condition or disease as may be specified by regulations made by the National Surrogacy Board;
  • Pre-conditions for conducting Surrogacy:
    • the intending couple (“a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy”) shall possess a Certificate of essentiality issued by the appropriate authority;
    • the surrogate mother shall possess an Eligibility Certificate issued by the appropriate authority;
    • an eligibility certificate to be separately issued to the Intending Couple by the appropriate authority;
  • Conditions for issue of Certificate of Essentiality to the Intending Mother:
    • Certificate of proven infertility shall be obtained in favour of either or both members of the intending couple, from a District Medical Board;
    • The intending couple and the surrogate mother shall file an application before a Magistrate of the first class or above and they shall obtain an order concerning the parentage and custody of the child to be born through surrogacy;
    • an insurance coverage of the prescribed amount (to be prescribed in the rules) in favour of the surrogate mother for a period of sixteen (16) months covering post-partum delivery complications;
  • Conditions for issue of Eligibility Certificate to the Surrogate Mother:
    • As on the day of implantation, the surrogate mother shall:
      • be an ever married woman;
      • have a child of her own;
      • be between the age of 25 to 35 years;
    • The surrogate mother shall be a close relative of the intending couple;
    • Such woman should not have provided her own gametes;
    • She shouldn’t have been a surrogate mother earlier. Only once in her lifetime, a woman can act as a surrogate mother;
    • Certificate of medical and physical fitness for surrogacy shall be obtained from a registered medical practitioner;
  • Conditions for issue of separate eligibility certificate for the intending couple:
    • As on the day of certification age of the intending couple is
      • between 23 to 50 years in case of female and
      • between 26 to 55 years in case of male;
    • The intending couple shall be married for at least five (5) years and are Indian Citizens;
    • The intending couple shouldn’t have had any surviving child biologically / through adoption/ through surrogacy earlier – Exception: Such child is mentally or physically challenged / suffers from life threatening disorder / fatal illness with no permanent cure and approved by the appropriate authority from a District Medical Board;
  • Other Conditions:
    • Written informed consent of the surrogate mother shall be obtained in the language she understands;
    • At any point of time, before implantation, the Surrogate Mother shall have an option to withdraw the practice of surrogacy before the implantation of embryo in her womb;
  • Where a child is born out of a surrogacy procedure, whether within India or outside:
    • the intending couple shall not abandon such child for any reason;
    • Such child shall be deemed to be a biological child of the intending couple and shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force;

The Chapters I to III detailed above contain provisions pertaining to regulation of surrogacy clinics and that of surrogacy and surrogacy procedures which are the major provisions in terms of implementation of the surrogacy law. The rest of the chapters deal majorly with procedures for registration and constitution / appointment of various authorities and other miscellaneous provisions.