Surrogacy in India

The Surrogacy (Regulation) Bill, 2019

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Key provisions of the bill

Mains level : Analysis of the bill

News
 The Lok has passed the Surrogacy (Regulation) Bill, 2019 by a voice vote.
 The Bill seeks to ban commercial surrogacy and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of authorities for its regulation of practice and processes.

Defining Surrogacy
 The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
Regulation of surrogacy
 The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
 Altruistic surrogacy involves no monetary compensation to the surrogate  mother other than the medical expenses and insurance coverage during the pregnancy.
 Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted
Surrogacy is permitted when it is:
 for intending couples who suffer from proven infertility;
 altruistic;
 not for commercial purposes;
 not for producing children for sale, prostitution or other forms of exploitation; and
 for any condition or disease specified through regulations.

Eligibility criteria for intending couple
 The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
 A certificate of essentiality will be issued upon fulfillment of the following conditions:
1. a certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
2. an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
3. insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
 The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
1. the couple being Indian citizens and married for at least five years;
2. between 23 to 50 years old (wife) and 26 to 55 years old (husband);

3. 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
4. other conditions that may be specified by regulations.

Eligibility criteria for surrogate mother
To obtain a certificate of eligibility from the appropriate authority, 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.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Appropriate authority
 The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
 The functions of the appropriate authority include;

1. granting, suspending or cancelling registration of surrogacy clinics;
2. enforcing standards for surrogacy clinics;
3. investigating and taking action against breach of the provisions of the Bill;
4. recommending modifications to the rules and regulations.

Registration of surrogacy clinics
 Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
 Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.

National and State Surrogacy Boards
 The central and the state governments shall 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.

Parentage and abortion of surrogate child
 A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
 An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
 This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.
 Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties
 The offences under the Bill include:
1. undertaking or advertising commercial surrogacy;
2. exploiting the surrogate mother;
3. abandoning, exploiting or disowning a surrogate child; and
4. selling or importing human embryo or gametes for surrogacy.

 The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
 The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

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