Cautions to be Administered by Intending Parents Opting for Surrogacy

Surrogacy in India is not a new concept and is being legally practiced since 2002. However, the much-awaited pieces of legislation regulating the surrogacy procedure in India have only come out in 2021 with the Parliament passing ‘The Surrogacy (Regulation) Act, 2021’ (hereinafter, “The SRA”), as well as ‘The Assisted Reproductive Technology (Regulations) Act, 2021’ (hereinafter, “The ARTA”).

The SRA was passed with the objective of constituting boards at the National as well as state levels and appointment of appropriate authorities for regulation of the practice and process of surrogacy across the country. On the other hand, the ARTA was passed with the aim for regulation and supervision of the ART Banks, prevention of misuse, safe and ethical practices of ART Services for addressing the issue of reproductive help where ART is required for becoming a parent, and to conduct research and development in surrogacy related issues across the country.

In light of the provisions of these Acts, this blog attempts to bring out certain legal cautions and prerequisites to be administered by the intending parents before opting for a surrogacy procedure to obtain their child in India.

Altruistic and Commercial Surrogacy

Before we delve further, it is pertinent to point out that as defined under the SRA, there can be two kinds of surrogacy being, altruistic surrogacy and commercial surrogacy.

The former means surrogacy in which no charges, fees, remuneration, or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative.

Whereas, commercial surrogacy means the commercialization of surrogacy services or procedures including selling or buying of human embryos or trading in the sale or purchase of human embryos 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, over and above the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.

It is to be emphasized that the latter kind i.e., commercial surrogacy is deemed illegal and all practices relating to commercial surrogacy are banned from practice in India. It is advised that all parents opting for surrogacy must clearly establish that they are opting for altruistic surrogacy and not commercial surrogacy.

Age Requirements

Section 21 (g) of the ARTA establishes the age requirements for intending parents to be eligible for obtaining surrogacy services. The provision states that ART clinics must only provide services to a woman over the age of 21 and below 50 years, and to a man over the age of 21 and below 55 years of age.

Certificate of Infertility for Intending Parents

Section 4 (ii) of the SRA states that surrogacy procedures can only be availed or performed by the respective ART clinic if the intending couple has a medical indication necessitating gestational surrogacy. Thereby, any couple of Indian origin or an intending woman who intends to avail of surrogacy must obtain a ‘certificate of recommendation’ from the Board on an application made to it in the prescribed manner.

There are certain prerequisites that need to be fulfilled before the ART procedure commences. The Director- in charge of the ART clinic must be satisfied, and thereafter he must approve his satisfaction in writing regarding the following: –

1. That the intending couple is in possession of a ‘Certificate of Essentiality’ issued by the appropriate authority.
2. That a ‘Certificate of a Medical Indication’ in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.
3. That ‘An Order’ concerning the parentage and custody of the child to be born through surrogacy has been passed by a Magistrate of the First Class (or above) on an application made by the intending couple or the intending woman and the surrogate mother, which will act as the birth affidavit after the surrogate child is born.
4. That an insurance coverage’ (of the prescribed amount and manner) in favour of the surrogate mother for a period of thirty-six months covering postpartum 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.

Certificate of Eligibility for Intending Parents

As per Section 4 (c) of the SRA, the appropriate authority is required to issue an ‘eligibility certificate’ separately for the intending couple after being satisfied that: –

1. The intending couple is married and between the age of 23 to 50 years in the case of females, and between 26 to 55 years in the case of males on the day of certification.
2. The intending couple should not have a surviving child, either obtained biologically, through adoption, or through surrogacy.

This means that an intending parent only qualifies for surrogacy if they do not have a surviving child obtained, irrespective of the means of obtaining the child. However, this is subject to exception. In case the surviving child is mentally or physically challenged or suffers from life-threatening diseases which are approved by the appropriate authority with a due medical certificate from a District Medical Board, this rule ceases to apply and the intending parents can move ahead with their surrogacy procedure.

Certificate of Eligibility for Surrogate Mother

The intending couple must make sure that the surrogate mother possesses the required ‘Certificate of Eligibility’ which is to be issued by the appropriate authority.

The appropriate authority will issue the certificate after being satisfied with the following conditions: –

1. No woman, other than an ever-married (at least married once) woman having a child of her own and between the age of 25 to 35 years on the day of implantation can be a surrogate mother or help in surrogacy by donating her egg oocyte or otherwise.
2. The surrogate mother must be a willing woman and out of free will volunteer to deliver the surrogate child.
3. The surrogate mother must not provide her own gamete.
4. Any woman can only act as a surrogate mother once in their lifetime. [However, the number of attempts required for conception can vary from case to case, and thereby, the same must be prescribed by the ART clinic after inspection of the health conditions of the surrogate mother.]
5. The surrogate mother must possess a certificate of medical and psychological fitness for surrogacy from a registered medical practitioner.
6. The surrogate mother must have a child of her own.

Registration of Surrogacy Clinics

As per Section 3 of the SRA, any surrogacy clinic conducting, or associated with conducting surrogacy or surrogacy-related procedures must be duly registered under SRA, 2021. Thereby, it is advised that all intending parents must satisfy themselves that the surrogacy clinic they opt for is duly registered with the government of India under the SRA. Further, since any form of commercial surrogacy is strictly prohibited by law, the intending couple must ensure that the surrogacy clinic is free from any practice associated with commercial surrogacy.

Registered ART clinics are mandated to employ only such persons who are qualified medical practitioners, and no medical practitioner can conduct an ART procedure outside the registered clinic.

No surrogacy clinic or any medical practitioners therein is allowed to promote or publish anything which is aimed at the following: –

1. Inducing a woman to act as a surrogate mother
2. Promoting the clinic for commercial surrogacy

Surrogacy clinics are strictly forbidden under the law to cause any abortion. If an abortion is to be made, it can be made after obtaining the written consent of the surrogate mother and after obtaining authorization from the appropriate authority regarding the same. The appropriate authority is mandated to give its authorization in accordance with the provisions of the ‘Medical Termination of Pregnancy Act, of 1971.’

Surrogacy clinics, medical practitioners therein, or the intending couple are barred from storing any human embryo or gamete for the purpose of surrogacy.

[Furthermore, the surrogacy clinics, medical practitioners or the intending couple, or any other person is strictly barred from conducting or causing to be conducted any sex selection for surrogacy.]