Context: Recently, the Bombay high court has ruled that a sperm or egg donor does not have legal rights over a child and cannot claim to be the biological parent.

• Bench says the sister has no legitimate right to claim that she is the biological parent of twins; grants visitation rights and access to the twin daughters to the petitioner

Key highlights

• The Bench was hearing a plea filed by a woman (petitioner) who challenged a trial court order that refused to give her visitation rights and access to her twin daughters born through surrogacy.

• The High court pronounced the above ruling while dismissing the argument of a woman (petitioner’s sister) who had volunteered to donate her oocyte (eggs) to her sister and brother-in-law who could not conceive naturally.

• The Judge held that the sister had no legitimate right to claim that she was the biological parent of the twins.

• The submissions on behalf of the husband that his wife’s younger sister being the oocyte donor is the biological mother stands rejected outrightly in view of the settled position in law on the basis of the guidelines and the Surrogacy Act enacted subsequently.

Observations by the court:

• The judge referred to the National Guidelines for Accreditation, Supervision and Regulation of ART (Assisted Reproductive Technology) Clinics in India, enacted in 2005.

• As per Guidelines, a child born through ART shall be presumed to be the legitimate child of the couple, born within wedlock and with the consent of both spouses.

• Guidelines clearly state that the sperm/oocyte donor shall not have any parental right or duties in relation to the child.

About Surrogacy (Regulation) Act, 2021

• The Act prohibits commercial surrogacy, but allows altruistic surrogacy. 

• In altruistic surrogacy, the surrogate mother receives no monetary remuneration other than medical bills and insurance coverage during the pregnancy.

• Commercial surrogacy refers to surrogacy or associated treatments that are performed for a monetary gain or reward (in cash or kind) that exceeds the cost of basic medical care and insurance coverage.

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

• 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 fulfilment of the following conditions:

• A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;

• An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and

• 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 fulfilment 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;

• 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;

• Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

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, 

• Advising the central government on policy matters relating to surrogacy;

• Laying down the code of conduct of surrogacy clinics;

• 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 Act include:

• Undertaking or advertising commercial surrogacy;

• Exploiting the surrogate mother;

• Abandoning, exploiting or disowning a surrogate child; and

• 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.