The Surrogacy (Regulation) Bill, 2016 passed by Lok Sabha

The Surrogacy (Regulation) Bill, 2016 was passed by the Lok Sabha on 19th December 2018. However it has not been passed by the Rajya Sabha yet. The bill was introduced in Lok Sabha on November 21st, 2016; the subject matter of the bill was referred to the Standing Committee on 12th January, 2017 and on 10th August, 2017, the Standing Committee submitted its report. The bill passed by the Lok Sabha includes provisions like:

Section 2(f) which defines “commercial surrogacy” as:

“commercialization 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”

Section 2(zcwhich defines “surrogacy” as

“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”

Section 2(zewhich defines “surrogacy procedures” as

“all gynaecological or obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryo in surrogacy”

Section 3 as per which on and from the date of commencement of this Act,—

  • no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures;
  • no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form;
  • no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person shall promote, publish, canvass, propagate or advertise or cause to be promoted, published, canvassed, propagated or advertised which—
    • is aimed at inducing or is likely to induce a woman to act as a surrogate mother;
    • is aimed atpromoting a surrogacy clinic for commercial surrogacy or 10 promoting commercial surrogacy in general;
    • seeks or aimed at seeking a woman to act as a surrogate mother;
    • states or implies that a woman is willing to become a surrogate mother; or
    • advertises commercial surrogacy in print or electronic media or in any other form;
  • no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorisation of the same by the appropriate authority concerned:
  • no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall store a humanembryo or gamete for the purpose of surrogacy:
  • no surrogacy clinic, registered medical practitioner, gynaecologist, 30 paediatrician, embryologist, intending couple or any other person shall be involved in any form of sex selection for surrogacy.

As per Section 4(ii), no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:—

  • when either or both members of the couple is suffering from proven infertility;
  • when it is only for altruistic surrogacy purposes;
  • when it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures;
  • when it is not for producing children for sale, prostitution or any other form of exploitation; and
  • any other condition or disease as may be specified by regulations made by the Board;

Eligibility criteria for commissioning parents

As per Section 4(iii), no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:—

  • the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying for itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely:—
    • a certificate of proven infertility in favour of either or both members of the intending couple from a District Medical Board.
    • an order concerning the parentage and custody of the child to be born through surrogacy, have been passed by a court of the Magistrate of the first class or above, on an application made by the intending couple and surrogate mother;
    • an insurance coverage of such amount as may be prescribed in favour of the surrogate mother for a period of sixteen months covering post partum delivery complications, from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act,1999;
  • the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions, namely:—
    • no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;
    • no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act;
    • no woman shall act as a surrogate mother by providing her own gametes;
    • no woman shall act as a surrogate mother more than once in her life time:
    • Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed;
    • a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner;
  • an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely:—
    • the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;
    • the intending couple are married for at least five years and are Indian citizens;
    • the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier:

As per Section 6, no person shall seek or conduct surrogacy procedures unless he has explained all known side effects and after effects of such procedures to the surrogate mother concerned and obtained in the prescribed form, the written informed consent of the surrogate mother to undergo such procedures in the language she understands.

As per Section 7, The intending couple shall not abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like:

Furthermore, any child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple and the said child shall be entitled to all the rights and privileges available to a natural child under any law for the time being in force.

Punishment provided

As per Section 35, no person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall—

  • undertake commercial surrogacy, provide commercial surrogacy or its related component procedures or services in any form or run a racket or an organised group to empanel or select surrogate mothers or use individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures, at such clinics, laboratories or at any other place;
  • issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;
  • abandon or disown or exploit or cause to be abandoned, exploited or disowned in any form the child or children born through surrogacy;
  • exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner whatsoever;
  • sell human embryo or gametes for the purpose of surrogacy and run an agency, a racket or an organisation for selling, purchasing or trading in human embryos or gametes for the purpose of surrogacy;
  • import or shall help in getting imported in whatsoever manner, the human embryo or human gametes for surrogacy or for surrogacy procedure; and
  • conduct sex selection in any form for surrogacy.

And if any person contravenes the above said provisions, it shall be an offence punishable with imprisonment for a term which may extend to ten years and with fine which may extend to ten lakh rupees.

As per Section 36, any registered medical practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act (other than the provisions referred to in section 35), rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.

Furthermore, in case of subsequent or continuation of the offence referred to above, the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration for a period of five years.

As per Section 37, any intending couple 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 commercial surrogacy or for conducting surrogacy procedures for commercial purposes shall be punishable with imprisonment for a term which may extend to 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.

As per Section 38, whoever contravenes any of the provisions of this Act, rules or regulations made thereunder for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees and in the case of continuing contravention with an additional fine which may extend to ten thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

As per Section 39. 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 37and shall be punishable for the offence specified under that section.

As per Section 40, notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be cognizable, non-bailable and non-compoundable.

As per Section 41, no court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by—

  • the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or
  • a person including a social organisation who has given notice of not less than fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.

It also provides that no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

Copy of bill: Surrogacy bill as passed by LS

-Tushar Kaushik

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