On this page you will read detailed information about Surrogacy Regulation Act of 2021.
As you contemplate expanding your family through surrogacy in India, it is critical to understand the country’s latest regulations on this complex process. In 2021, India implemented the Surrogacy Regulation Act to protect the rights of surrogates and intended parents alike by establishing guidelines around eligibility, procedures, and legalities. The Act aims to prevent the exploitation of surrogates while allowing ethical surrogacy to continue.
Under the new law, only Indian citizens can act as surrogates and intended parents. Surrogacy will be allowed for married heterosexual couples who have been married for at least 5 years, and where both partners are between the ages of 23 to 50 years old. Single persons, live-in partners, and homosexual couples are prohibited from commissioning surrogacy. Additionally, close relatives are not allowed to act as surrogates. These regulations provide much-needed oversight and standardization to India’s surrogacy industry.
As an intended parent looking to grow your family through surrogacy in India, understanding these new regulations will help ensure your surrogacy journey is legal, ethical and successful. With some advance planning, surrogacy in India can still achieve your goal of welcoming a child, while also protecting all parties involved. Though the process may require patience, the rewards can be life-changing.
What Is Surrogacy?
Surrogacy refers to a method of assisted reproduction in which a woman carries and delivers a child for another individual or couple. The surrogate mother agrees to relinquish the infant to the intended parents after birth. There are two main types of surrogacy:
- Gestational surrogacy: The surrogate mother is implanted with an embryo created by in vitro fertilization (IVF) using the eggs and sperm of the intended parents or donors. The surrogate has no genetic relationship to the child.
- Traditional surrogacy: The surrogate’s own eggs are fertilized, either by the intended father’s sperm or donor sperm. The surrogate is genetically related to the child.
In India, gestational surrogacy used to be popular and largely unregulated, with commercial surrogacy being legal. However, the Surrogacy Regulation Act of 2021 banned commercial surrogacy in India. Now, only altruistic surrogacy, in which the surrogate cannot be compensated beyond medical expenses, is permitted. The new law aims to prevent the exploitation of surrogates and protect the rights of the child.
To pursue surrogacy in India under the new law, you must meet several conditions:
- Both intended parents must be Indian citizens with a medical indication for surrogacy.
- The surrogate must be a close relative, married and have her own child. She cannot provide her services more than once.
- Only gestational surrogacy is allowed using the intended parents’ eggs and sperm. Donor gametes are prohibited.
- A surrogacy agreement must be drafted and approved in court before embryo transfer.
- The child will have the same rights as a biological child of the intended parents.
The Surrogacy Regulation Act aims to curb misuse and prevent the commercialization of surrogacy. By allowing only altruistic surrogacy for infertile Indian couples using a relative as a surrogate, the new law endeavors to uphold ethical practices and protect all parties involved. Understanding the types of surrogacy and India’s latest regulations can help intended parents navigate their options and pursue surrogacy in a lawful and ethical manner.
Key Provisions in India’s New Surrogacy Law
The Surrogacy Regulation Act of 2021 establishes regulations for surrogacy in India. Some of the key provisions in the new law include:
Restrictions on Who Can Access Surrogacy
The Act only allows Indian married couples to commission surrogacy. Single parents, homosexual couples, and foreign nationals are prohibited from pursuing surrogacy in India. This aims to curb the exploitation of surrogates and the commercialization of surrogacy.
Mandatory Medical Insurance and Post-Delivery Care
The new law requires intended parents to provide mandatory health insurance for the surrogate mother for the duration of the pregnancy as well as post-partum care for the surrogate for up to three months after delivery. This helps ensure the health, safety and welfare of surrogate mothers during and after the surrogacy process.
Regulating Surrogacy Clinics and Banks
The Act establishes a National Surrogacy Board and State Surrogacy Boards to regulate surrogacy clinics and banks. Surrogacy clinics must be registered and only licensed medical professionals can facilitate surrogacy arrangements. This helps curb unethical practices by unregulated clinics.
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Prohibition of Commercial Surrogacy
The law bans commercial surrogacy and only allows altruistic surrogacy in which the surrogate mother is a close relative. Paying surrogates is prohibited, except for medical expenses. This aims to prevent the exploitation of women from economically disadvantaged backgrounds.
Post-Birth Rights and Responsibilities
The intended parents will be the legal parents of the child born through surrogacy. However, the surrogate mother will have no parental rights over the child. She will have no obligation to care for the child after delivery. This provides clarity on the rights and responsibilities of parties involved in the surrogacy agreement.
The Surrogacy Regulation Act establishes much-needed regulation and oversight of the surrogacy process in India. The provisions aim to curb commercialization and protect the welfare of all parties involved, especially the surrogate mother and the child. Overall, the new law is a step in the right direction to regulate surrogacy in an ethical and responsible manner.
Eligibility Criteria for Intended Parents
To be eligible to pursue surrogacy in India under the Surrogacy Regulation Act of 2021, intended parents must meet several criteria. The primary requirements relate to the intended parents’ marital status, sexual orientation, and medical needs.
Marital Status
Only legally married heterosexual couples may pursue surrogacy in India. Both partners must provide proof of marriage in the form of a marriage certificate. Unmarried couples, same-sex couples, and live-in partners are ineligible under the current regulations.
Medical Need
There must be a medical need for pursuing surrogacy. This includes situations where the intended mother is unable to carry a pregnancy or give birth due to infertility, medical illness, or other health conditions. A medical certificate from a gynecologist or infertility specialist confirming the medical need for surrogacy is required. Using surrogacy for convenience or non-medical reasons is prohibited.
Age Requirements
Intended parents must be between 23 to 50 years of age at the time of applying for surrogacy. Both partners’ ages will be considered to determine eligibility, with the upper age limit of 50 years applied to the older of the two partners.
Citizenship
Only Indian citizens, Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) are permitted to pursue surrogacy in India under the new law. Foreign nationals and expatriates living in India are ineligible.
In summary, surrogacy in India is only available to married heterosexual couples of Indian origin with a proven medical need. Unmarried individuals, same-sex couples, and foreign nationals remain ineligible at this time. The regulations aim to curb commercial surrogacy and protect the rights of all parties involved, especially the surrogates.
Regulations for Surrogacy Clinics
To operate as a surrogacy clinic in India, you must follow the regulations set forth in the Surrogacy Regulation Act of 2021. Clinics will need to obtain the proper licenses and permits to facilitate surrogacy arrangements and provide treatment.
Licensing and Registration
All surrogacy clinics must register with the National Registry of Assisted Reproductive Technology (ART) Clinics and Banks and obtain a certificate to operate. Clinics must renew their registration every 5 years. Only government hospitals, private hospitals, and healthcare facilities with the proper accreditation and infrastructure may register as surrogacy clinics. Clinics must employ medical professionals with experience and expertise in assisted reproductive technology and surrogacy procedures.
Standards of Care
Surrogacy clinics must maintain high standards for quality of care, professionalism, and safety. They must have adequate facilities, equipment, and staff to properly screen and evaluate intended parents and surrogates, facilitate surrogacy arrangements, and monitor surrogates during pregnancy and delivery. Clinics must keep detailed records on all surrogacy procedures, treatments, and outcomes. Patient information must be kept confidential according to the law.
Restrictions
According to the Act, surrogacy clinics may only facilitate altruistic surrogacy arrangements where the surrogate is a close relative of one of the intended parents. Commercial surrogacy is prohibited. Clinics may not advertise surrogacy services. Foreign intended parents are not eligible for surrogacy in India. Only Indian citizens may act as surrogates. No person, organization, or clinic may undertake or promote sex selection for surrogacy.
By following these regulations carefully, surrogacy clinics in India can legally and ethically facilitate surrogacy for eligible intended parents in India. Strict oversight and compliance with the law is necessary to prevent exploitation and protect the rights of all parties involved.
Rights of Surrogate Mothers
The Surrogacy Regulation Act of 2021 establishes several important rights for surrogate mothers in India. As the birth mother carrying the child, surrogates maintain certain rights over their own health and well-being during the pregnancy.
Right to Informed Consent
Prior to embryo transfer, surrogates must provide their informed consent to act as a surrogate. This includes consenting to medical procedures related to the surrogacy as well as relinquishing the child after birth. Surrogates have the right to understand all aspects of the surrogacy arrangement and medical procedures before agreeing to participate.
Right to Comprehensive Medical Care
Surrogate mothers have the right to quality prenatal care, delivery care, and postnatal care. The intended parents are responsible for covering all reasonable medical expenses related to the surrogacy and pregnancy. This includes regular doctor checkups, hospital stays, medication, and any necessary medical procedures. Surrogates should not incur any out-of-pocket costs for medical care during the surrogacy.
Right to Legal Representation
Surrogates have the right to independent legal counsel regarding the surrogacy agreement. While intended parents will arrange for legal representation to draft the agreement, surrogates can seek advice from their own legal counsel to ensure their rights are protected. Surrogates are not obligated to accept the terms of an agreement without legal review.
Right to Privacy and Confidentiality
Surrogate mothers have the right to privacy regarding their participation in the surrogacy. Their medical information and personally identifiable information should be kept confidential. Details about the surrogacy arrangement and pregnancy should not be shared without the surrogate’s consent. Surrogates have the right to select who is informed about their surrogacy.
Right to Fair Compensation
Under the act, surrogates have the right to receive reasonable compensation for acting as a surrogate, including payment for lost wages and travel expenses related to the surrogacy. The intended parents are responsible for paying all compensation and ensuring the surrogate is adequately supported financially during the pregnancy. Surrogates should not feel economically exploited under the terms of the agreement.
In summary, the Surrogacy Regulation Act establishes critical protections and rights for women acting as surrogates in India. By upholding these rights, the act aims to prevent the exploitation of surrogates and ensure ethical surrogacy practices. Surrogates should feel empowered, respected and cared for during the surrogacy process.
National and State Surrogacy Boards
The Surrogacy Regulation Act of 2021 established the National Surrogacy Board and State Surrogacy Boards to regulate surrogacy in India.
National Surrogacy Board
The National Surrogacy Board is appointed by the central government and aims to ensure effective regulation of surrogacy in India. The board consists of:
- A chairperson who is an eminent person in the field of assisted reproductive technology (ART) or medical genetics
- Three women members of whom one shall be from a non-governmental organization involved in social work or women’s health issues
- Three members to represent interests of prospective commissioning couple(s)
- Three members representing interests of surrogates
- One member representing interests of child born through surrogacy
- Three eminent members from the medical field
- Ex-officio members not below the rank of Joint Secretary to the Government of India, one each from the Ministry of Health and Family Welfare, Ministry of Home Affairs, and the Ministry of Women and Child Development.
The National Surrogacy Board will advise the central government on policy matters relating to surrogacy and also review and monitor the implementation of the Act. It will issue directions to State Surrogacy Boards and also compile and update a national database of assisted reproductive technology clinics and surrogacy clinics.
State Surrogacy Boards
The State Surrogacy Boards will be set up by each state government and will discharge functions similar to the National Surrogacy Board for their respective states. They will follow policy guidelines and directions issued by the National Surrogacy Board. The State Surrogacy Boards will also maintain a database of surrogacy clinics and ART clinics in their state. They will investigate complaints of breaches of the Act and take appropriate action.
The establishment of the National Surrogacy Board and State Surrogacy Boards is a significant step towards effectively regulating surrogacy services in India and preventing the exploitation and unethical practices in surrogacy. Their functions and regulatory oversight will help build trust in the surrogacy system in India.
Ban on Commercial Surrogacy
India’s Surrogacy Regulation Act of 2021 introduced a ban on commercial surrogacy in the country. Under the new law, only altruistic surrogacy will be permitted, where the surrogate mother is a close relative of one of the intending parents. Commercial surrogacy, where surrogate mothers receive compensation for carrying and delivering a child, will no longer be allowed.
Reasons for the Ban
There were several concerns with the commercial surrogacy industry in India that prompted lawmakers to implement the ban:
- Exploitation of Surrogate Mothers. Critics argued that commercial surrogacy leads to the exploitation of poor and vulnerable women in India who serve as surrogate mothers. Surrogates came from impoverished backgrounds and were lured by the promise of payment. However, they were often poorly compensated and faced health risks and difficulties during pregnancy and childbirth.
- Babies as Commodities. Commercial surrogacy was seen as treating babies as commodities that can be bought and sold. There were concerns about the wellbeing and future of children born through commercial surrogacy. Questions arose about their rights, citizenship, and parentage.
- Lack of Regulation. The surrogacy industry in India operated with little oversight or regulation. Clinics were not properly monitored, and there were reports of poor health and living conditions for surrogates, as well as a lack of counseling and consent. A ban on commercial surrogacy aims to curb such malpractices.
The new law establishes a more regulated system of altruistic surrogacy in India. While surrogacy will still be permitted when a surrogate mother is a close relative, the ban on commercial surrogacy is aimed at preventing the exploitation and commodification of both surrogates and babies. The law brings India’s surrogacy rules in line with most other countries that only allow altruistic surrogacy.
Implications of the Surrogacy Regulation Act
The Surrogacy Regulation Act of 2021 has several implications for those pursuing surrogacy in India.
Restricted Eligibility
The act strictly limits who is eligible to pursue surrogacy. Only Indian citizens who have been married for at least 5 years can opt for surrogacy. This excludes single parents, homosexual couples, and foreigners from pursuing surrogacy in India. The new law aims to curb the exploitation of surrogates and prevent the misuse of surrogacy.
Government Oversight
The new law establishes regulatory bodies to oversee surrogacy in India – the National Surrogacy Board, State Surrogacy Boards and appropriate authorities. These bodies will regulate surrogacy clinics, enforce standards of care, and aim to prevent the exploitation of surrogates. Surrogacy clinics must be registered with the appropriate authority.
Rights of Surrogates
The act aims to protect the rights of surrogates. Only altruistic surrogacy will be allowed, banning commercial surrogacy. Surrogates will have the right to life insurance during the pregnancy and post-delivery care. Surrogates also have the right to withdraw from the surrogacy at any time during the process. The intended parents must provide the surrogate with all necessary expenses during and after the pregnancy.
To summarize, the Surrogacy Regulation Act of 2021 makes surrogacy in India more restrictive and regulated. While aiming to prevent the exploitation of surrogates, the new law significantly limits who can pursue surrogacy. The act establishes regulatory bodies to enforce standards of care and protect the rights of all parties involved, especially surrogates. Overall, the new law recognizes and protects surrogacy as an act of altruism rather than a commercial transaction.
Surrogacy Laws FAQ: Common Questions Answered
India’s Surrogacy Regulation Act of 2021 brings much-needed regulation to the practice of surrogacy in India. The act aims to curb exploitation and protect the rights of all parties involved, especially surrogate mothers and children born through surrogacy. If you’re considering surrogacy in India, here are some common questions and answers about the new regulations:
Q1: What types of surrogacy are permitted?
Q2: What are the eligibility criteria for commissioning parents?
Q3: What are the rights and responsibilities of surrogate mothers?
Q3: What is the legal status of the surrogate child?
By regulating surrogacy and protecting the rights of all involved, India’s Surrogacy Regulation Act aims to curb exploitation while still allowing surrogacy to be an option for infertile couples and single women. The new laws provide much-needed oversight and help ensure surrogacy in India is done safely, ethically and legally.
Conclusion
As India continues to navigate the complexities surrounding surrogacy, you can appreciate the nuanced policy decisions reflected in the Surrogacy Regulation Act of 2021. While tightening restrictions aims to curb exploitation, it also risks limiting access for those seeking to build families through ethical surrogacy. Overall, the act signifies progress in establishing guardrails and oversight for an industry still finding its footing. Though not perfect, the regulation brings India closer to balancing the autonomy and protection of all parties involved. The law’s impact will become clearer as surrogacy continues transforming from a largely unregulated practice into one upholding the dignity of all. With openness to revisiting provisions down the line, India’s policymakers demonstrate a willingness to learn and refine, giving hope for continued progress.
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