The Surrogacy (Regulation) Act, 2021

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Introduction

In Layman’s language, surrogacy is a process in which a woman carries and gives birth to a baby on behalf of another person or couple and is generally termed as ‘renting a womb’. According to Section 2(zd) of the Surrogacy (Regulation) Act, 2021, surrogacy is defined as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.” It allows people who cannot have a child naturally to still experience the joy of parenthood as the baby born through surrogacy is genetically related to the intended parents. The surrogacy procedure includes certain complicated legal as well as medical steps; therefore, it is essential to know about the process and seek professional advice for the same. In India, two types of surrogacy are practiced that is, surrogacy in the traditional sense and gestational surrogacy. Gestational Surrogacy is legal in India where the In Vitro Fertilization (IVF) process is used. In November 2016, the first Surrogacy (Regulation) Bill was introduced in the Lok Sabha. This law failed to be enforced and in July 2019, the Surrogacy (Regulation) Bill, 2019 was introduced. This Bill was further enhanced by the addition of certain provisions which resulted in the introduction of the Surrogacy (Regulation) Act, 2021, enacted in December 2021. In this article, we will explore the important provisions of the Surrogacy (Regulation) Act, 2021. 

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was enacted on December 25, 2021, with an aim “to constitute National Assisted Reproductive Technology and Surrogacy Board, State Assisted Reproductive Technology and Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.” This Act provides various new provisions such as allowing a widowed or divorced man between 35 and 45 years, or a legally married couple can use surrogacy in case she has a medical condition. Let us understand some of the provisions of the Act in the following part of the article.

Important provisions

Some of the important provisions of the Act are listed as follows:

• Section 2: It deals with various important definitions under the Act including altruistic surrogacy, commercial surrogacy, couple, embryo, gamete, intending couple, intending women, surrogacy, surrogate mother, and zygote.
• Section 3: This Section of the Surrogacy (Regulation) Act, 2021, deals with the prohibition and regulation of surrogacy clinics. As per this provision, 
  • Only registered surrogacy clinics should conduct or associate with any activity relating to surrogacy and surrogacy procedures;
  • Commercial surrogacy should not be conducted, offered, or promoted in any case by a surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner, or any person. 
  • no surrogacy clinic should employ or cause to be employed or take services of any person, whether on an honorary basis or on payment, who does not possess such qualifications.
  • no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple, or any other person should conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on the authorization of the same by the concerned appropriate authority.
  • Sex selection and storage of human embryos or gamets are not allowed in any case for the purpose of surrogacy.
• Section 4: This Section provides a detailed explanation regarding the ‘Regulation of surrogacy and surrogacy procedures’. It states that no surrogacy clinic, that is not registered, can participate in, assist in, or collaborate with any activities related to surrogacy or surrogacy procedures. It also illustrates that no surrogacy or surrogacy procedures should be conducted unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied. This provision also provides information about the certificate provided to the intending couple. 
• Section 5: As per this provision, no person including a relative or husband of a surrogate mother or intending couple or intending woman should seek or encourage to conduct any surrogacy or surrogacy procedures on her except for purposes mentioned under Section 4(ii) of the Act. 
• Section 6: This Section ensures that written informed consent is taken from the surrogate mother after clearly explaining all the side effects and after effects of the surrogacy procedure in the language she understands. Moreover, this provision gives an option to the surrogate mother to withdraw her consent for surrogacy before the implantation of the human embryo in her womb. 
• Section 7: The intending couple or intending woman is prohibited from abandoning a child born through surrogacy on grounds such as any genetic defect, birth defect, sex of the child, or any other condition. 
• Section 8: This provision states that “A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.”
• Section 10: As per this Section no person, organization, surrogacy clinic, laboratory, or clinical establishment of any kind should force the surrogate mother to abort at any stage of surrogacy except in such conditions as may be prescribed.
• Section 11: It deals with ‘Registration of surrogacy clinics’ and ensures that no surrogacy procedures are performed by any non-registered surrogacy clinic and the same should be done within a registered surrogacy clinic by an appropriate authority. 
• Section 12: It states that “The appropriate authority shall after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules and regulations made thereunder, grant a certificate of registration to the surrogacy clinic, within a period of ninety days from the date of application received by it, in such form, on payment of such fees and in such manner, as may be prescribed.” If the appropriate authority is not satisfied with the applicant then it has the authority to reject the application for registration. Moreover, every certificate of registration should be valid for 3 years and should be renewed in such manner and on payment of such fees as prescribed.
• Section 13: Registration of the surrogacy clinic can be canceled or suspended under this Section of the Surrogacy (Regulation) Act, 2021, upon receipt of the complaint or suo motu. 
• Section 14: The surrogacy clinic or the intending couple or the intending woman can apply for an appeal within 30 days from the date of receipt of the communication relating to an order of rejection of application, suspension, or cancellation of registration.
• Section 15: It states that “There shall be established a Registry to be called the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.”
• Section 16: As per this provision, “The National Assisted Reproductive Technology and Surrogacy Registry referred to in section 15 and to be established under section 9 of the Assisted Reproductive Technology Act shall be the National Registry for the purposes of this Act.” 
• Section 17: This Section deals with the ‘Constitution of National Assisted Reproductive Technology and Surrogacy Board’. It states that the Central Government should constitute a Board to be known as the National Assisted Reproductive Technology and Surrogacy Board to exercise the powers and perform the functions conferred on the Board under this Act. It also lists the members to be included in the Board.
• Section 19: A meeting presided over by the Chairperson and in his absence by the vice-chairperson should be held once every 6 months. Decisions regarding the issues raised during the meeting are made by the majority votes. 
• Section 21: This provision under the Act allows for the disqualification of members by the Central Government on the grounds of moral turpitude, prejudicial to the public interest, physical or mental incapability, insolvency, or any other ground to prove the misbehavior of the members. As per Section 24 of the Act, any person ceasing to be a Member should be eligible for re-appointment as such Member whereas ex officio Member should be appointed for more than 2 consecutive terms.
• Section 25: It deals with the functions of the Board which are as follows:
  • “to advise the Central Government on policy matters relating to surrogacy;
  • to review and monitor the implementation of the Act, and the rules and regulations made thereunder and recommend to the Central Government, changes therein;
  • to lay down the code of conduct to be observed by persons working at surrogacy clinics;
  • to set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics;
  • to oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure their effective performance;
  • to supervise the functioning of State Assisted Reproductive Technology and Surrogacy Boards; and
  • such other functions as may be prescribed.”
• Section 35: This Section deals with the ‘Appointment of appropriate authority,’ and states that 
  • “The Central Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for each of the Union territories for the purposes of this Act and the Assisted Reproductive Technology Act.
  • The State Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for the whole or any part of the State for the purposes of this Act and the Assisted Reproductive Technology Act.”
• Section 36: It lists the important functions of the appropriate authority which are as follows:
  • “to grant, suspend or cancel the registration of a surrogacy clinic;
  • to enforce the standards to be fulfilled by the surrogacy clinics;
  • to investigate complaints of breach of the provisions of this Act, rules and regulations made thereunder and take legal action as per provision of this Act;
  • to take appropriate legal action against the use of surrogacy by any person at any place other than prescribed, suo motu or brought to its notice, and also to initiate independent investigations in such matter;
  • to supervise the implementation of the provisions of this Act and rules and regulations made thereunder;
  • to recommend to the Board and State Boards about the modifications required in the rules and regulations in accordance with changes in technology or social conditions;
  • to take action after investigation of complaints received by it against the surrogacy clinics; and
  • to consider and grant or reject any application under clause (vi) of section 3 and sub-clauses (a) to (c) of clause (iii) of section 4 within a period of ninety days.”
• Section 37: It provides certain powers to the appropriate authority including, “summoning of any person who is in possession of any information relating to violation of the provisions of this Act, and rules and regulations made thereunder, production of any document or material object as mentioned earlier, and search any place suspected to be violating the provisions of this Act, and the rules and regulations made thereunder.”
• Section 40: As per this provision, “Any intending couple or intending woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person for not following the altruistic surrogacy or for conducting surrogacy procedures for commercial purposes” should be punished with imprisonment for a term which may extend to 5 years and with fine which may extend to Rs. 5,00,000 for the first offence and for any subsequent offence with imprisonment which may extend to 10 years and with fine which may extend to Rs. 10,00,000.
• Section 43: Every offence under this Act should be cognizable, non-bailable and non-compoundable.
• Section 46: All records, charts, forms, reports, consent letters, agreements, and all documents related to surrogacy should be preserved by the surrogacy clinic for 25 years. Moreover, “All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorized by the appropriate authority on this behalf.”
• Section 47: If the appropriate authority has reason to believe that an offence under this Act has been or is being committed at any surrogacy clinic or any other place, such authority can enter and search at all reasonable times. 

Related Case Law

• Baby Manji Yamada vs. Union of India (September 29, 2008)

Conclusion

In conclusion, the evolution of surrogacy laws in India reflects a growing recognition of the ethical and legal complexities surrounding this practice. From initially being a popular destination for commercial surrogacy, India has taken significant steps to regulate and limit surrogacy arrangements, aiming to protect the rights and well-being of surrogate mothers, intended parents, and the children involved. The surrogacy laws in India now focus on altruistic surrogacy, where no monetary compensation is involved. The intent has been to prioritize the well-being and dignity of the surrogate mothers, ensuring they are not exploited or treated as mere commodities. Ultimately, the aim should be to create a legal framework that upholds the principles of compassion, fairness, and respect, ensuring that surrogacy remains a viable option for those in need while safeguarding the rights and well-being of all individuals involved.