Written by: Bharat Sharma
Surrogacy Regulation Act, 2021
The word surrogate is derivation of the Latin word “surrogates” which means “a substitute”. To become parents from mere partners, is no less than the first dream of a married couple. Every couple wants to complete their family by producing children. But not every couple is able to achieve this dream, sometimes due to medical problems or any other problem at other times. For this a solution was provided to the couples, through which they can achieve their dream of becoming a parent. “Surrogacy” was introduced in India as a solution for the wedded couples, who were unable to produce their own child.
Types of Surrogacy
On the basis of genetic relationship, surrogacy has two types.
- Traditional Surrogacy
- Gestation Surrogacy.
On the other hand, on the basis of payment for Surrogacy, it also has two types.
- Commercial Surrogacy
- Altruistic Surrogacy.
In Traditional Surrogacy, the surrogate mother is inseminating with the father or the sperm of the donor. In simple words, in this type of surrogacy the surrogate mother will have the genetic relationship directly with the child because in this surrogacy she uses her own egg.
In Gestational Surrogacy, the process of In-vitro Fertilization is used to make the embryos. In this process, the egg and the sperm of the couples or the donor is used and after the formation of the embryos, it is inserted in the uterus of the surrogate mother who keeps the child in her womb for that couple. In order to go through this surrogacy process, the parents have to prove that they are incapable of producing their own child only then can Gestational Surrogacy be allowed.
In Commercial Surrogacy, some amount is paid to the surrogate mother. This amount is more than the medical expenses as it also includes additional amount of selling and buying the embryos.
In Altruistic Surrogacy, the surrogate mother does not receive any money other than the medical expenses. Basically, this type of surrogacy is done within the members of the same family.
Provisions of Surrogacy (Regulations) Act, 2021
This Act of 2021 only talks about Commercial and Altruistic Surrogacy. Under this act, Altruistic surrogacy is allowed in India and the commercial surrogacy is not. This is to avoid the exploitation of surrogate mother and the children.
Some Important Provisions of this Act.
Section 4 (ii) States the various grounds for the surrogacy. like the grounds on which the surrogacy is allowed in India-
1) when either the wife or the husband or both husband & wife have any medical conditions which indicates the necessity of gestational surrogacy
2) when they prove that the purpose of surrogacy is Altruistic and not commercial.
3) when it is also proved that the children born from surrogacy will not be used for human trafficking or prostitution.
Section 4 (iii) talks about the essential conditions that the intending parents are bound to follow during the Surrogacy-
- Certificate of essentiality when either the wife or the husband or both husband & wife have any medical conditions which indicates the necessity of gestational surrogacy. This certificate is mainly issued by the District Medical Board. Order has been passed by the Magistrate of First class that the custody of the child will be given to the intending parent. And the insurance will also be provided to the surrogate mother for the period of 16 months.
- Eligibility Certificate for the surrogate mother-
- that she should be married and must have a progeny of her own
- she should be between the age of 25 to 35
- she can only be a surrogate once
- Eligibility Certificate for the couples
- Age of the wife should be between 23 to 50 and age of the husband should be between 26 to 55
- At the time of surrogacy, the couples should not have any surviving, adopted, surrogate, or biological child.
Section 6 it is mentioned in this section that the side-effect after the surrogacy must be informed to the surrogate mother in a language she understands. And a written consent of the surrogate mother should be taken, that she is aware about the side-effect of surrogacy.
The surrogate mother has the option to withdraw her consent of being a surrogate mother before the implantation of human embryo in her womb.
Section 7 that the child born out of surrogacy cannot be abandoned by the parents whether residing in India or outside the territory for whatsoever reasons, be it any medical disorder in child or any condition unfavorable to them. This section restricts the couple from rejecting the child born through surrogacy, with no exceptions provided.
Section 10 that no surrogate mother can be forced to abort the child at any stage, by any clinic or medical institution.
Section 11 talks about that the clinic where the surrogacy is performed should be registered by the appropriate authority.
Section 40 of the act is talking about the punishment and fine for the offences committed under this act. This section States that conducting surrogacy procedure for commercial purpose is an offence under this Act. The person committing this offence for the first time will be punished for a period which may extend to five years and a fine which may extent to 5 lakhs. For any subsequent offence the person shall be punishable with 10 years of imprisonment and fine up to Rs.10 Lakhs.
This Act mainly talks about the eligibility and obligations of surrogate mother and the intending parents. The surrogacy Act has fulfilled the dreams of many couples to become the parents. Commercial surrogacy is not allowed under this act because this will exploit lots of surrogate mother or children born from the surrogacy. In this act there are also provisions relating to punishment if any unethical act or offence is committed under this act.