The Lok Sabha on August 05, 2019 cleared the Surrogacy (Regulation) Bill, 2019, which seeks to ban commercial surrogacy and to promote ethical altruistic surrogacy with the due clearance from appropriate authorities to only eligible couples and mother as defined under this Bill1.
The bill is yet to get approval from Rajya Sabha and the President's assent to become a law. Once it is approved, it will be announced by the Central government for enforcement purpose.
The bill only allows permitted surrogacy to be ethical surrogacy, where (i) the intending couple has been proven infertile; (ii) the nature of surrogacy is altruistic, means no monetary compensation is made to the surrogate mother except medical expenses and insurance coverage; (iii) not for commercial or marketable purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
Highlights of Surrogacy Regulation Bill 2019
The bill is seeking to regulate the surrogacy procedure by appointing an appropriate authority in center and state; the said authority will be responsible to recommend any amendments to the rules and regulations related to surrogacy.
The bill also empowers the central and the state governments to constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB include (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
The appropriate authority shall also regulate:
1) Surrogacy clinic
The appropriate authority will be responsible to issue, cancel or suspend the registration of surrogacy clinic, and also monitor the regulatory compliance of these clinics.
2) The intending couple
The appropriate authority will issue the 'certificate of essentiality' to the intending couples on the basis of:
- a certificate of proven infertility of one or both partners of the intending couple from a District Medical Board;
- an order of parentage and custody of the surrogate child passed by a Magistrate's court; and
- Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
The appropriate authority will issue the 'certificate of eligibility' to the intending couples on the basis of:
- the couple being Indian citizens and married for at least five years;
- between 23 to 50 years old (wife) and 26 to 55 years old (husband);
- they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and
- Other conditions that may be specified by regulations.
3) The surrogate mother
The appropriate authority will also issue the 'certificate of eligibility' to the intending surrogate mother, for this the surrogate mother has to be -
- a close relative of the intending couple;
- a married woman having a child of her own;
- 25 to 35 years old;
- a surrogate only once in her lifetime; and
- possess a certificate of medical and psychological fitness for surrogacy.
Apart from this the appropriate authority empowers the surrogate mother that she has an option to withdraw from surrogacy before the embryo is implanted in her womb. She can also give her written consent to abortion of surrogate child. The surrogate child is deemed to be the biological child of the intending couple.
Non-compliances of the Bill like participating in commercial surrogacy; exploiting the surrogate mother; abandoning, exploiting or disowning a surrogate child; and selling or importing human embryo or gametes for surrogacy, will result in imprisonment up to 10 years and a fine up to 10 lakh rupees.