Context: In this episode, the spotlight is on Surrogacy (Regulation) Act of 2021. The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth. Before the detailed analysis let’s take a look at the highlights of the Act.

Surrogacy Bill 2020

• The primary idea behind the bill is to prohibit commercial surrogacy, while only allowing altruistic surrogacy to take place. 
• Altruistic surrogacy is defined in the bill as surrogacy in which no money or remuneration except medical expenses are provided for the surrogate mother by the couple. 
• Surrogacy where the selling or buying of a human baby is involved is called commercial surrogacy and is banned in the country by way of this legislation.
• Aim to regulate in vitro fertilization (IVF) clinics.

Objective

• To curb unethical practices in reproductive services as well as safeguard interest of women.
• To establish surrogacy Boards at national and state level.

Key Features

• It allows willing woman to become a surrogate mother.
• It prohibits commercial surrogacy.
• It means sale and purchase of human embryo and gametes.
• Insurance cover for a surrogate mother has been increased to 36 months from 16 months.
• It allows Indian woman who is a widow or divorcee between the age of 35 to 45 years to opt for surrogacy.
• It provides all the rights and privileges that are entitled to new born child.
• Sex selection is strictly prohibited.
• It keeps a regulatory check on exploitation of surrogate mothers and abandonment of surrogate child.
• No woman shall act as a surrogate mother more than once in her lifetime.
• A certificate from a registered medical practitioner shall be mandatory.

Criteria for Surrogatory Mother

• The woman in question must be ever married (married at least once in her life) and should have her own child. 
• She should be between 25 to 35 years of age and a close relative of the couple opting for surrogacy. 
• Any woman agreeing to be a surrogate, cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness.
• The bill also mentions that written and informed consent of the surrogate mother is necessary ahead of the procedure for surrogacy and that the surrogate can withdraw her consent anytime before the implantation of the embryo. 
• The bill further restricts the couple opting for surrogacy from abandoning the child under any circumstances after his/her birth.

Criteria for Regulation of surrogacy clinics

• The legislation deals extensively with the regulation of surrogacy clinics in the country and restricts any surrogacy clinic from allowing commercial surrogacy. 
• The legislation also bans the surrogacy clinics from advertising in print and electronic media and conducting sex selection or determination procedures.
• Any surrogacy related procedure can be carried out only by registered surrogacy clinics and the application for registration of such clinics must be made before the Appropriate Authority as formulated under the bill.

National and State Surrogacy Boards

• The legislation entails the requirement for setting up of National and State Surrogacy Boards. 
• The National Surrogacy Board shall be headed by the Minister of Health and Family Welfare and comprise of the Secretary of the Department, three women Members of Parliament and three members each from the Ministry of Women and Child Development, Ministry of Law and Justice and the Ministry of Home Affairs amongst others.

The primary functions of the National Board will include 

• advising the Government on policy matters;
• reviewing and monitoring the implementation of the law;
• laying down the code of conduct and supervising the State Surrogacy Boards. 

Similarly, State Surrogacy Boards are also required to be set up in each state which will report to the Central Board and the Government while also reviewing the appropriate authorities in the State. 

• The appropriate authority is required to be appointed by the Central and State Governments within 90 days of the bill becoming an Act.

Offences and Punishment
The following acts are recognized as offences under the law and attract the corresponding punishment:-

• Undertaking or advertising commercial surrogacy Imprisonment extending to ten years and fine extending to Rupees ten lakhs
• Abandoning, disowning or exploiting the child born out of surrogacy - Imprisonment extending to ten years and fine extending to Rupees ten lakhs
• Exploiting the surrogate mother - Imprisonment extending to ten years and fine extending to Rupees ten lakhs
• Selling, importing or trading in human embryos or gametes for the purpose of surrogacy - Imprisonment extending to ten years and fine extending to Rupees ten lakhs
• Conducting sex selection - Imprisonment extending to ten years and fine extending to Rupees ten lakhs
• Any medical practitioner who commits any offence under the Act shall be punished with imprisonment extending upto five years and fine extending upto Rupees ten lakhs. 
• If a subsequent offence is reported by the same person, he shall be reported to the appropriate authority and the State Medical Council for the suspension of his registration for five years.
• Any couple who initiates commercial surrogacy shall be punished for the first offence with imprisonment upto five years and fine upto Rupees five lakhs and for any subsequent offence with imprisonment upto ten years and fine upto Rupees ten lakhs.
• All the offences mentioned under the legislation are non-bailable.

Additional Information
Surrogacy

• It is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).

In Vitro fertilization (IVF)

• It is a series of procedures used to help with fertility or prevent genetic problems and assist with the conception of a child.
• It is the most effective form of assisted reproductive technology (ART).
• It involves retrieving eggs from a woman’s ovaries and fertilizing them with sperm in a laboratory.