Baby through surrogacy: Everything you need to know about the Surrogacy laws

Representative image. Photo: New Africa/

India has strict laws to regulate surrogacy. The Ministry of Health the other day announced important rules as part of the enactment of the surrogacy (control) Act, which was passed by both Houses of Parliament late last year and was later approved by the President. It remains to be seen to what extent these rules and general provisions of the law, prepared by the Research Division of the Ministry of Health, will prevent surrogacy. What is the law of surrogacy? How important are clinics to surrogacy? Who will benefit from this law? Central law has made it abundantly clear that having children through surrogacy is no child’s play. What are the legalities and conditions you need to know about? Here are those!

What is the law of surrogacy?

For couples without children, surrogacy involves raising their baby in another woman's womb (she gets artificially inseminated with the father’s sperm) and passing it on to the couple after childbirth. This law will help in prohibiting surrogacy for commercial purposes and legalizing the process for childless couples in need of surrogacy. The law is mainly aimed at regulating the exploitation and trade in this sector. The first part of the law is the interpretation of jargon related to surrogacy.

The importance of clinics?

Only registered clinics can perform surrogacy and other follow-up procedures. You are legally prohibited to conduct surrogacy for commercial purposes. Always remember not to accept the services of people without qualifications, and also not to perform surrogacy outside of the place of registration. Advertisement and publicity are also prohibited. Abortion is not permitted without the permission of the relevant authorities and the consent of the surrogate mother. The second part of the law clarifies that preserving a fetus for the purpose of surrogacy and the determination of the sex of the unborn child are prohibited.

Strict conditions?

Part III of the Act refers to the restrictions on the use of surrogacy and the provision that surrogacy should not take place without the satisfactory conditions specified in the procedure. It should also be ensured that surrogacy is inevitable for the couple. This requires a recommendation certificate from a designated board. This cannot be done without the consent of the Director-in-Charge of the Surrogacy Clinic and the officer qualified to determine the matter. They should certify in writing that the circumstances are acceptable to undergo surrogacy. A certificate of surrogacy must be accompanied by a certificate from the District Medical Board, an order requiring a special application to the First-Class Magistrate's Court regarding paternity after childbirth, and 36 months' insurance coverage for the woman preparing for surrogacy. The details of the insurance are in the rules announced yesterday. Accordingly, couples who require a surrogate pregnancy are required to take out insurance coverage for 36 months for the woman who is preparing to rent the uterus. Insurance coverage should cover all possible complications during pregnancy and potential postpartum complications. The notification also states that the insurance must be from a recognized company.

Who owns this facility?

In addition to Indian couples and couples of Indian origin, surrogacy is allowed for Indian widows and divorcees aged 35–45 years. And the couple must be married. The age of the wife should be 23–50. The husband's age is 26 - 55. Those who do not have children are eligible for this. There is also a stipulation that says that they shouldn’t have previously attempted adoption or surrogacy.

What are the circumstances?

Women who do not have a uterus or have problems with it, those who have had a miscarriage due to health reasons, surgical removal of the uterus, those who have been unable to conceive despite various treatments, those who have had multiple miscarriages due to health reasons, and those who have difficulty conceiving due to illness.

Who is the surrogate mother?

The law calls them surrogate mothers. The surrogate mother must have a certificate of eligibility based on certain conditions. She must be aged between 25 and 35, married, and the mother of a healthy baby. A woman can rent her uterus only once. She also needs a doctor's certificate confirming her physical and mental health.

These things should be ensured

The side effects and consequences of surrogacy must be brought to the notice of the parties concerned, and a consent form (in the prescribed form) must be obtained from the woman preparing for surrogacy in a language they understand, and in the absence of both, the woman who is preparing for the surrogacy is permitted to withdraw. Couples requiring a surrogate pregnancy must submit a separate affidavit to the Collector or to the Judicial Magistrate, following the prescribed procedure for registration at a surrogacy clinic. The rules also stipulate an application fee of Rs 2 lakh.

Can't give up

The law also firmly states that a child born to a couple in need of surrogacy must not be abandoned for any reason, be it in India or abroad. Couples are obliged to raise the child under any circumstances such as birth defect, gender of the child, or if the surrogate mother bears multiple babies. A surrogate baby has all the rights of a normal child. It is also forbidden to force a surrogate mother to have an abortion.

Registration of clinics

Part IV of the Act deals with matters including the registration of surrogacy clinics. It refers to the Certificate of Registration, revocation of accreditation, and the conditions for filing an appeal against it. This section also deals with the setting up of Reproductive Technology Assistance Technology (ART) and surrogacy registry to manage clinics and embryo banks that assist in artificial insemination.

Authorities and Duties

The Board will work at the national and state levels to oversee all matters such as certification, regulation, and accreditation. Part V of the Act sets out the functions of this Board, who the members are, how members face disqualification and the terms of the reappointment. Part VI deals with the appointment of appropriate authorities and their powers.

Crime and punishmentUnauthorized clinics and laboratories offering rental pregnancies for commercial purposes will be banned. It is illegal to advertise and make claims, abandon a child, exploit a woman who is willing to provide a surrogate uterus, sell an embryo, deal with related agencies and transactions, import an embryo, and perform sex determination. The provisions relating to the commercialization of such surrogacy will also be subject to the provisions of the Indian Penal Code. That amounts to imprisonment for up to 10 years and a fine of up to Rs 10 lakh. And violation of the provisions of the surrogacy act carries a maximum penalty of 5 years imprisonment and a fine of up to Rs 10 lakh. In case of recurrence of the offence on the part of the doctor, the registration will be cancelled for 5 years. The penalty for unpaid surrogacy or related offences would be 5 years imprisonment and a fine of up to Rs 5 lakh. If convicted, you can face up to 10 years in prison and a fine of up to Rs 10 lakh.

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