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Surrogacy in India

Surrogacy Law in
India

Surrogacy is an assisted reproductive technique in which a woman agrees to carry and give birth to a child on behalf of another couple. To address the issues related to surrogacy, the Government of India introduced the Surrogacy (Regulation) Act, 2021, which came into effect in December 2021.

This legislation brought a major change to the earlier framework by placing strict regulations on surrogacy practices in India, with the objective of ensuring transparency and safeguarding the rights and well-being of both the surrogate mother and the child.

Objectives of the Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was introduced with the following objectives:

  • Prohibition of commercial surrogacy and prevention of exploitation of women
  • Permission of only altruistic surrogacy practices across the country
  • Protection of the health, dignity, and legal rights of surrogate mothers
  • Safeguarding the welfare and legal identity of children born through surrogacy
  • Regulation and monitoring of surrogacy clinics by central and state authorities

 

Types of Surrogacy

Under the Surrogacy (Regulation) Act, 2021, surrogacy in India is classified based on the nature of compensation involved.

Commercial Surrogacy is strictly prohibited.

Any monetary compensation, reward, or inducement offered to the surrogate mother is illegal, except for approved medical expenses and insurance coverage related to pregnancy.

Altruistic Surrogacy is the only form of surrogacy that is legally permitted.

In altruistic surrogacy, the surrogate mother does not receive any financial gain. She is reimbursed solely for medical expenses, insurance, food, and travel associated with the pregnancy.

Eligibility Criteria for Intended Parents

Married Couples

To be eligible for surrogacy in India, a married couple must meet the following conditions:

  • They must be the citizens of India
  • The intending couple must be legally married.
  • The female partner should be between 23 to 50 years of age.
  • The male partner should be between 26 to 55 years of age on the day of certification.
  • The intending couple should not have any living adopted child, biological child, or a child born through surrogacy.
  • The intending couple must obtain certificates of medical indication, essentiality, and eligibility from a registered medical practitioner. These documents prove that they cannot conceive or carry a pregnancy on their own.
  • They must receive eligibility approval from the appropriate authority
  • Only for Indian couples and NRIs, OCI/PIO cardholders with medical indication and with a minimum of five years of marriage.

Eligibility Criteria for Surrogate Mothers

A woman may be permitted to act as a surrogate mother only if she meets all of the following conditions:

  • The surrogate mother must be known to the intending couple
  • She must be an ever-married, widowed, or divorced woman with at least one biological child of her own
  • Her age should be between 25 and 35 years at the time of embryo implantation
  • Use of her own egg is not permitted for surrogacy
  • A woman is allowed to become a surrogate mother only once in her lifetime
  • The total number of surrogacy attempts, including embryo transfer cycles, must not exceed three
  • A valid certificate confirming her medical and psychological fitness must be obtained from a Registered Medical Practitioner prior to the surrogacy procedure

Biological Criteria and Use of Gametes

Under the Surrogacy (Regulation) Act, 2021:

  • Surrogacy is mainly carried out in the form of gestational surrogacy, in which the surrogate mother does not use her own eggs
  • The intending parents are required to contribute their own gametes for the surrogacy process

Certificates and Issuance Levels under the Surrogacy (Regulation) Act, 2021 and Rules, 2022

This article pertains to the notification of the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022 in the Gazette of India (Extraordinary). In accordance with the Act and Rules, the details and issuing authorities of the required certificates are as follows:

SN

Relevant Section of Surrogacy (Regulation) Act

Particular of Certificate

Issuance Level

    

1.

Section 4 (iii) (a) (1)

Certificate of Medical Indication necessitating Gestational Surrogacy for intending couple

District Medical Board

2. 

Section 4 (iii) (a)

Certificate of Essentiality for intending couple

Appropriate Authority having jurisdiction over District Medical Board

3. 

Section 4 (b)

Eligibility certificate for surrogate

mother

Chairperson, Dist. Appropriate

Authority for ART & Surrogacy

4. 

Section 4 (b) (v)

Certificate for Medical &

Psychological fitness of surrogate

mother

Registered Medical Practitioner,

preferably OBGY

5. 

Section 4 (c)

Eligibility Certificate for intending

couple for surrogaсу

Chairperson, Dist. Appropriate

Authority for ART & Surrogacy

6. 

Rule 4

Certification of recommendation

State Board

For this purpose, six forms created at the state level are shared for reference to facilitate proper processing. This ensures that surrogacy applications of intending couples are addressed as per regulations and that the medical interests of the surrogate mother are safeguarded in the state.

Conclusion

The Surrogacy (Regulation) Act, 2021 marked a significant development in the regulation of surrogacy in India. By permitting only altruistic surrogacy and introducing strict eligibility requirements and approval procedures, the law aims to create a balance between the genuine needs of intending couples and the rights, safety, and well-being of surrogate mothers and children.

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