The genesis

The Surrogacy (Regulation) Act 2021 was passed on 25th December 2021. It came into force on 25th January 2022. The long pending Bill eventually became an Act. 

Basics of Surrogacy

1. Surrogacy is a method of (assisted) reproduction. A woman agrees to become pregnant and carry a child in her womb to give birth and hand over the child to another person or persons who cannot have children of their own.
2. Types of surrogacies – (i) Traditional (ii) Gestational.
   Traditional surrogacy – the woman carrying the child in the womb is also the biological mother as she is the egg donor. Such woman conceives using the biological father’s sperm. Such woman who carries the child has a genetic link to such child. Such child will be handed over to the biological father and his wife. Typically, this approach is followed when either of the couple has trouble conceiving naturally or for family members or friends.  Gestational surrogacy – the woman carrying the child in her womb has no genetic or biological connect with the child. Such woman conceives using the egg and sperm implanted through assisted reproductive technology (ART) methods such as IVF, IUI etc. Literally, the woman only rents her womb and once delivered, the child is handed over to the couple. Typically, this approach is followed in couples who are unable to conceive naturally or have a history of medical conditions, infertility etc.
3. Arrangements of surrogacy – (i) Altruistic (ii) Commercial
   
   Altruistic surrogacy – an arrangement for surrogacy wherein the woman does not receive any compensation beyond reimbursement of medical expenses through the pregnancy, insurance coverage and pregnancy related expenses. Such arrangements are usually between family members or friends.Commercial surrogacy – an arrangement in which the woman is compensated in addition to medical expenses, insurance and other pregnancy related expenses. Literally, it is consideration paid to a woman for agreeing to rent her womb.

Highlights of the Surrogacy (Regulation) Act 2021

1. Surrogacy services can be availed by the following people – (a) Intending couple (b) intending woman
   The Act defines an intending couple as:
   (i) The couple who intends to become parents through surrogacy and
   (ii) There is medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy– The Act defines “couple” as an Indian man above 21 years of age and Indian woman above 18 years of age.The intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification.– The Act defines an intending woman means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
2. The intending couple / intending woman must procure a certificate of recommendation from the National Assisted Reproductive Technology and Surrogacy board (“Board”) constituted under this Act. Simply put, the intending couple or woman must get a certificate from the Board for being eligible to legally go through the surrogacy process.
3. Only a married woman having a child of her own and between 25 – 35 years of age on the day of implantation can be a surrogate mother or help in surrogacy by donating her egg or oocyte.  She should be a willing woman (willing to go through the surrogacy process). No woman shall provide her own eggs to act as surrogate. No woman shall act as a surrogate more than once in her lifetime. Such woman willing to act as surrogate must procure a certificate of fitness from a registered medical practitioner.
4. The Act altogether bans commercial surrogacy. It recognizes only altruistic surrogacy. If commercial surrogacy is practice after commencement of the Act, it is a punishable offence with fine ranging up to Rs. 10 lakhs and imprisonment up to 10 years. Poverty, relatively lower cost in surrogacy and lack of effective surrogacy laws made commercial surrogacy rampant in India. This provision of banning commercial surrogacy is aimed at reining in malpractices and exploitation of women.
5. The Act allows for gestational surrogacy only. Therefore, any woman using her biological eggs is prohibited from being a surrogate. This way, only the intending couple (or intending woman) become the biological parent(s). The child born through surrogacy shall have the same rights provided to a natural child under law.
6. Only surrogacy clinics registered under this Act can conduct or help in conducting activities relating to surrogacy / procedures. All employees in such surrogacy clinics shall have qualifications as prescribed under this Act. Registered medical practitioner, gynaecologist, paediatrician, embryologist, or any other person shall not conduct or aid in conducting surrogacy or surrogacy procedures at a place other than a place registered under this Act. No clinic or above-mentioned persons can advertise or canvass or promote any commercial surrogacy services or induce women to act as surrogate(s).
7. The Act provides for establishment of National Assisted Reproductive Technology and surrogacy Board and State assisted Reproductive Technology and Surrogacy Boards. The composition of members of such Boards, their powers and duties are contained in the Act. 

The Grey Area

While the Act has been lauded as progressive and a step into the future, experts opine that there is a glaring dichotomy in the provisions. 

There is a general view point that by restricting the eligibility of surrogacy only to a married couple (man – woman) and a single woman (widowed or divorced), a larger section has been excluded – same gender couples (who cannot biologically give birth), single men and single women who do not want to marry yet enjoy motherhood legitimately. 

The Act completely bans commercial surrogacy. Instead, regulating it will ensure prevention of illegal surrogacy market where uneducated and poor women are exploited.

While the Act has been introduced with lot of delay and after consultation, it is believed if the loopholes are addressed then, the Act will truly address assisted reproduction in an objective manner.   

For Full text of Bill: 

chrome- extension://efaidnbmnnnibpcajpcglclefindmkaj/https://egazette.nic.in/WriteReadData/2021/232118.pdf