The Surrogacy (regulation) bill, 2016 was introduced in Lok Sabha on 21st November, 2016 and on 12th January, 2017 it was referred to standing committee. Thereafter on 10th August 2017 the committee gave its report on the same to Lok Sabha and on the basis of that report Lok Sabha passed the bill on 19th December 2018.

The Surrogacy bill, 2016 focuses on prevention of commercial surrogacy and promotion of altruistic surrogacy. The bill also safeguards the surrogate mother and child from exploitation. Surrogacy is a way by which an infertile married couple who are eligible in accordance with the provisions of the bill can now bear a child with help of a surrogate mother eligible as per provisions of the bill. However the surrogate mother will not be given any monetary benefit or compensation for renting her womb to intended couple except her medical and insurance expenses during pregnancy.

The proposed legislation provides for registration of surrogacy clinic and establishment of National and State surrogacy board and Appropriate Authority.

Need for Surrogacy bill
In India there was no prescribed legislation to regulate the practice of surrogacy. There were some guidelines issued by THE COUNCIL of MEDICAL RESEARCH in the year 2005, to regulate surrogacy in India[1]. These guidelines were contrary to the present bill in the sense that the guidelines provided for monetary compensation to the surrogate mother which is to be decided by the intending couple and the surrogate mother.

In 2008, in the case of Baby Manji Yamada vs. Union of India[2], Supreme Court of India realised the lack of legislation relating to surrogacy in India. India was facing issues because of the lack of surrogacy legislation as India was becoming a hub for commercial surrogacy. In 2009 it was observed by Law Commission of India that Foreign Nationals were attracted because surrogate mother were available at lower charges due to poverty which led to exploitation of poor women.[3]

Thereafter the law commission of India praised enactment of a surrogate bill that forbids commercial surrogacy and approves altruistic surrogacy, provides provisions for regulation of surrogacy.

The Surrogacy (Regulation) Bill, 2016 [4]passed by Lok Sabha provides for the following:
The bill defines under Section 2:
(b) Altruistic surrogacy “altruistic surrogacy" means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative

(f) Commercial surrogacy “commercial surrogacy" means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;

(g) Couple as legally married Indian man and woman above the age of 21 years and 18 years respectively married Man and Woman.
(zb) “Surrogacy" means 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;

However there is no definition of the word close relative in the Act.

Section 3 of the Act provides for:
1) Compulsory Registration of Surrogacy Clinic,
2) No surrogacy at other place than registered clinic, no Specialist or medical practitioner shall perform commercial surrogacy
3) No Specialist or medical practitioner to perform without qualification
4) No promotion or aid or advertisement
* of commercial surrogacy in any way by clinic or any person
* That encourage a women to be a surrogate mother
* Seeks a women to Act as a surrogate
* Implies the willingness of a women to become a surrogate 
5) No abortion without consent of mother and Appropriate Authority (such authorisation should comply with the provisions of the Medical Termination of Pregnancy Act, 1971)
6) NO storage of Human Embryo or Gamete is allowed for surrogacy purpose.

 

Regulation of Surrogacy And Surrogacy Procedures

Section 4- Under following purposes surrogacy is permitted- Infertile, Altruistic (Unselfish) purpose, No commercial surrogacy, No prostitution or sale of born surrogate child, for any other purpose or disease for which regulation made by Board allows.
Clause 3 Director or In-charge of clinic and specialist of clinic are satisfied that following Conditions are fulfilled -
 Certificate is issued by competent Authority after confirming the below conditions-
1) Certificate of infertility to the couple intending surrogacy by District Medical Board,
2) Order of Court passed by a Magistrate of the first class or above, regarding custody and parentage of child,
3) Insurance of Surrogate mother and child.

Eligibility certificate of surrogate mother by Appropriate Authority -
1) Ever married woman having own child (25-35 age).
2) Close relative (Not defined in this Act)
3) One surrogate birth in her life time (no limit for attempts)
4) Medical and psychological Fitness certificate of intending surrogate mother.

Eligibility of Intending couple Appropriate Authority -
1) Age women 23 to 50 man 26 to 55,
2) 5 years of marriage,
3) Indian citizen,
4) No child before by any way (exception- child having life threatening disease or disorder with no cure with certificate of district medical Board)

Section 6 Written consent of surrogate mother is necessary and she shall be told all the side effects of the birth.
Section 7 No child shall be abandoned (Defined under Section 2(a) of the Act) by the intending parents after birth for any reason or defect or gender. (Child born by surrogacy shall be deemed to be a natural child)
Section 9 No person shall in any way force the surrogate mother to abort the child.
 

Registration of Surrogacy Clinic

Section 10 Application for registration shall be made by clinic to competent Authority in prescribed form and with fee within 60 days of establishment of Authority and if not applied for registered such clinic shall cease to be a clinic within 6 months from the commencement of the Act. No registration shall be granted till Authority is satisfied that clinic has the required manpower and facilities.

Section 11- Authority shall grant Certificate on being satisfied of all conditions within 90 days of application. Authority shall reject Certificate with reason recorded in writing. Certificate will be valid till 3years and it can be renewed. Clinic shall display the certificate at noticeable place.

Section 12- Cancellation or suspension of certificate may be done by Authority either on suo moto or on complaint for breach of any provision of the Act after giving notice to clinic to show cause why the certificate shall not be cancelled. After hearing the clinic it may cancel or suspend the certificate. Authority may also suspend or cancel certificate without notice for public interest.

Section 13 Surrogate clinic aggrieved by order of Authority under Section 12 within 30 days from the date of order appeal to State Government (SG) or Central government (CG).

Section 14 to 22 - The Act provides for Constitution of National Surrogacy Board and prescribes the term of office of Members, Meeting of Board, Vacancies that occur should not invalidate the proceeding, disqualifications for appointment as member, Eligibility for reappointment of member.

Section 22- Functions of the National Surrogacy Board:-
# To advise Central Government on matters of surrogacy
# To review and monitor implementation of Act
# To Lay down code of conduct to be observed by persons at clinic and minimum standards of physical infrastructure, equipment’s of Clinic
# Observe performance of bodies constituted, supervise the functioning.

Section 23 to 31 - Constitution of State and Union surrogacy Board and prescribes for Composition, term of office of member, meetings of board, Vacancies that occur should not invalidate the proceeding, disqualifications for appointment as member, Eligibility for reappointment of member

Section 32- Appointment of appropriate Authority within 90 days from the date of commencement of this act by Central Government as well as State Government.

Section 33 - Functions of Appropriate Authority:-
1) Grant, suspend or cancel registration of surrogacy clinic
2) To enforce standards to be maintained by clinic
3) To investigate complaint of breach of provision of the Act, take legal action
4) Take legal Action and investigate in the matter of use of surrogacy at any place other than prescribed.
5) Supervise implantation of Act
6) To recommend Board and State Boards about modifications in technology
7) Take appropriate Action after investigation of complaint received
8) To consider grant or reject any application.

Section 34- Powers of Appropriate Authority:-
# Summoning of any person violation provision of the Act,
# Production of document or material object,
# Search any place violation provision of the Act,
# Other power as may be prescribed.

Section 34 (2) - Shall maintain a record in register of grant, cancel, suspend of certificate, certificate to intending couple and surrogate mother.
 

Offences and Punishment Mentioned Under The Act

Section 35 Prohibition of commercial surrogacy and exploitation of surrogate mother, child born.
# No person or group shall undertake commercial surrogacy or provide any relating service.
# No advertisement or publication for commercial surrogacy
# No person shall disown abandon exploit in any form the child
# No person shall exploit the surrogate mother
# No person shall sell human embryo or gamete for surrogacy
# No person shall import or help in import of human embryo or gamete for surrogacy

Above mentioned Acts are punishable with Imprisonment of not less than 10 years and fine may extend up to 10 lakh.

Section 36 Punishment for contravention of any provisions of the Act- Imprisonment of not less than 5 years and fine may extend up to 10 lakh.

Section 37 Punishment for initiation of commercial surrogacy- Any person who seeks commercial surrogacy shall be punishable with imprisonment for a term which shall not be less than five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.

Section 38 Penalty for Contravention of provisions of Act or rules for which no specific punishment is provided shall be punishable with 3 years + 5 lakhs continuing contravention 10,000 for every day.

“Section 39 Presumption in case of surrogacy
Notwithstanding anything contained in the Indian Evidence Act, 1872, the Court shall presume, unless the contrary is proved, that the woman or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of Section 4 and such person shall be liable for abetment of such offence under Section 37 and shall be punishable for the offence specified under that Section.”

The Bill is yet to be introduced in Rajya Sabha and after the accent of president the bill will become an Act. 

End-Notes
[1] National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Indian Council of Medical Research, 2005
[2]  (2008) 13 SCC 518
[3] Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy, Report No. 228, Law Commission, 2009,http://lawcommissionofindia.nic.in/reports/report228.pdf.
[4] https://www.prsindia.org/sites/default/files/bill_files/Surrogacy%20%28Regulation%29%20Bill%2C%202016.pdf
[5] The Surrogacy (Regulation) Bill, 2016 Passed by Lok Sabha