Surrogacy Bill passed in Parliament; Here's all you need to know about new legislation

The Lok Sabha on Friday passed the Surrogacy (Regulation) Bill, 2019 via voice vote. Minister of State for Health Bharti Pravin Pawar introduced the Surrogacy (Regulation) Bill, 2019, as passed by Rajya Sabha for consideration and passage. 

The Surrogacy (Regulation) Bill was first introduced by the then Minister of Health and Family Welfare Dr Harsh Vardhan in Lok Sabha on 15 July 2019 and transmitted to Rajya Sabha for its concurrence. The Rajya Sabha then sent the bill to the select committee for further deliberation.

Last week, Rajya Sabha passed the bill after amendments and returned it to Lok Sabha on December 14. The new bill aims to constitute a National Surrogacy Board and state surrogacy boards for regulation of the practice and process of surrogacy.  

Surrogacy (Regulation) Bill: All you need to know

Regulation of surrogacy and appointment of appropriate authority:

The most important aspect of the bill is its regulatory mechanism. The new legislation prohibits commercial surrogacy but allows altruistic surrogacy, which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy was allowed in India since 2002, and due to the absence of regulations, a large number of underprivileged women willing to provide the service in want of money opted for transnational surrogacy. 

Under its regulatory framework, the new bill instructs Central and state governments to appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. Additionally, the Central and state governments will be required to constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. 

The NSB will be responsible for advising the Central government on policy matters relating to surrogacy, laying down the code of conduct of surrogacy clinics, and supervising the functioning of SSBs.

Responsibilities of appropriate authority and registration of surrogacy clinics:

Under the new legislation, the appropriate authorities on appointment will be responsible for granting, suspending or cancelling the registration of surrogacy clinics, enforcing standards for surrogacy clinics, investigating and taking action against breach of the provisions of the Bill and recommending modifications to the rules and regulations.

Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority. The legislation requires clinics to apply for registration within a period of 60 days from the date of appointment of the appropriate authority.

Certificate of essentiality and eligibility criteria for intending couple:

As per the bill, "Surrogacy is permitted when it is: (i) for intending couples who suffer from infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations."

The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

A couple can apply for eligibility certificates if the surrogate mother is:

1. A close relative of the intending couple
2. A married woman having a child of her own
3. 25 to 35 years old
4. A surrogate only once in her lifetime, and
5. Possess a certificate of medical and psychological fitness for surrogacy

As per the bill, a certificate of essentiality will be issued upon fulfilment 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

Parentage and abortion of surrogate children:

A child born under 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. 

Such 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 Surrogacy (Regulation) Bill specifies a range of offences and penalties for contraventions of the provisions of the Bill.

Major 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 of up to Rs 10 lakh.