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Surrogacy (Regulation) Bill, 2016: Lok Sabha passes Bill prohibiting commercial surrogacy

The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile.  It permits surrogacy only for couples who cannot conceive a child.

Dec 20, 2018 10:56 IST
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The Lok Sabha on December 19, 2018 passed the Surrogacy (Regulation) Bill, 2016 which is aimed at prohibiting commercial surrogacy and unethical practices relating to it.

Once the Bill is enacted by the Parliament, the National Surrogacy Board will be constituted. The States and Union Territories will constitute the State Surrogacy Board and State Appropriate Authorities within three months of the notification by the Union Government.

Definition of Surrogacy as per Surrogacy (Regulation) Bill, 2016

As per the Bill, Surrogacy is defined as "a practice whereby one woman carries the child for another with the intention that the child should be handed over after birth".

Surrogacy may be altruistic or commercial in nature.  Altruistic surrogacy involves an arrangement where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy.  Commercial surrogacy includes compensation in cash or kind paid to the surrogate mother.

Provisions of the Surrogacy (Regulation) Bill, 2016

The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile.  

It permits surrogacy only for couples who cannot conceive a child.

The surrogate mother has to be a ‘close relative’ of the intending couple.

No payment other than reasonable medical expenses can be made to the surrogate mother.

The surrogate child will be considered as the biological child of the intending couple.

Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother.  

The Bill prohibits commercial surrogacy, makes it a punishable offence.

Eligibility conditions for surrogate mothers and intending couple

  • The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. 
  • The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile.  It permits surrogacy only for couples who cannot conceive a child.
  • Surrogacy is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
  • The surrogate mother has to be a ‘close relative’ of the intending couple who has been married and has had a child of her own.  The Bill does not define the term ‘close relative’. 
  • The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. 
  • The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. The surrogate mother too needs a ‘certificate of eligibility’.
  • The Bill does not specify a time limit within which such certificates will be granted.   It also does not specify an appeal process in case the application is rejected.

Provisions related to abortion

  • For an abortion, the intending couple needs to comply with the Medical Termination of Pregnancy Act, 1971, and the approval of the appropriate authority along with the consent of the surrogate mother. 
  • The Bill does not specify a time limit for granting such an approval. 
  • The intending couple has no say in the consent to abort.

Appropriate authority and its functions

The central and state governments will appoint one or more appropriate authorities. The appropriate authority comprises the Joint Director of the State Health Department, an officer of the State Law Department, a medical practitioner, and an eminent woman.

The functions of the appropriate authority include:

(i) Granting, suspending or cancelling registration of surrogacy clinics;

(ii) Enforcing standards for surrogacy clinics; and

(iii) Investigating and taking action against complaints of breach of the Act.

Registration of surrogacy clinics

  • Surrogacy clinics cannot undertake surrogacy or its related procedures unless they are granted registration by the appropriate authority. 
  • Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
  • This application will be accepted or rejected within 90 days. 
  • No human embryo or gamete can be stored by a surrogacy clinic for the purpose of surrogacy.

Offences and penalties

  • The Bill prohibits commercial surrogacy; makes commercial surrogacy, its advertisement, and exploitation of the surrogate mother a punishable offence with imprisonment for 10 years and a fine of up to Rs 10 lakh.

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