Background

India has been suffering surrogacy commercialization for few decades now. Since the concept of Surrogacy is a newly introduced term for the country, neither there was statutory legislation to regulate, nor there realization to have one. To contribute more to the thought process, Surrogacy was not even socially accepted in the country and this led to unethical, ignorant and exploitative commercialization, which further led in ignorance of certain guidelines provided by the Indian Council for Medical Research (ICMR).

It will also be evident to take note that women involved in surrogacy faced several hardships, such as exploitation, poor living conditions, low cost fertility clinics, and unethical treatment. O the other hand, surrogacy can be seen as a blessing for childless families and therefore it is also required to be promoted in the best possible manner.

To enlighten the positives and mitigate the risks and unethical commercialization of Surrogacy, India finally has legislation.

The ministry of health and family welfare has notified Surrogacy (Regulation) Rules, 2022 under Notification No. G.S.R. 460(E) on 21 June 2022 which provides manner for registration, fee for a surrogacy clinic and the requirement and qualification for persons employed at a registered surrogacy clinic.

Key Highlights from the Act and rules there under –

• Commercial surrogacy is strictly prohibited exempting only altruistic surrogacy which can be practiced. No surrogacy clinic, gynecologist, embryologist, or any other medical practitioner shall conduct or promote commercial surrogacy in any form. Under the 2021 Act, only altruistic surrogacy is permitted.
• There shall be established a Registry be called National Assisted Reproductive Technology and Surrogacy Registry for the purpose of registration of surrogacy clinics under this Act. Along with Centre, every State and Union Territories shall establish a similar kind of Board for surrogacy matters.
• Every clinic which is conducting surrogacy procedures shall within a period of sixty days, from the date of appointment of the appropriate authority, apply for registration of their clinics. Registration shall be renewed after every 3 years. Manner of application for obtaining a certificate of recommendation by the Board has been specified in Form 1.
• No surrogacy clinics, unless registered under this Act, shall be involved in any surrogacy activities or procedures; or employ any person who does not possess qualifications prescribed in the Act. Surrogacy clinics shall have at least one Gynecologist, one anesthetist, one embryologist and one counselor. The clinic may employ additional staff by the Assisted Reproductive Technology Level 2 clinics; normally Director, Andrologist and shall appoint such staff as may be necessary to assist the clinic into day-to-day work.
• The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.
• The surrogate mother shall be an Indian woman between the age of 35-45 years, intending to avail the surrogacy. Any woman intending to be a surrogate mother cannot be a surrogate for more than once in her lifetime. Consent of a surrogate mother shall be as specified in Form 2, in the language she understands.
• When an intending couple has a medical necessitating surrogacy, shall obtain a ‘Certificate of Essentiality/Infertility’ from the National/State Assisted Reproductive Technology and Surrogacy Board.
• The intending woman or couple must purchase a general health insurance coverage in favor of surrogate mother for a period of thirty six months from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority established under the provisions of the Insurance Regulatory and Development Authority Act, 1999 for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.
• Surrogate mother may be allowed for abortion during the process of surrogacy in accordance with the Medical Termination of Pregnancy Act, 1971

Keeping in view both sides of impacts of surrogacy in India, the legislation has sought to attain balance.

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