1. Short title and commencement.—(1) This Act may be called the Surrogacy (Regulation) Act, 2021.
(2) It shall come into force on such date2 as the Central Government may, by notification in the Official Gazette, appoint.
1. Received the assent of the President on the 25th December, 2021.
2. January 25, 2022 [Vide Noti. No. S.O. 292(E), dated 20-1-2022].
2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(a) “abandoned child” means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry;
(b) “altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;
“Assisted Reproductive Technology Act” means the Assisted Reproductive Technology (Regulation) Act, 2021;
(g) “commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo 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, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;
(h) “couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively;
(i) “egg” includes the female gamete;
(j) “embryo” means a developing or developed organism after fertilisation till the end of fifty-six days;
(m) “foetus” means a human organism during the period of its development beginning on the fifty-seventh day following fertilisation or creation (excluding any time in which its development has been suspended) and ending at the birth;
(n) “gamete” means sperm and oocyte;
(r) “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;
(s) “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;
(v) “oocyte” means naturally ovulating oocyte in the female genetic tract;
(zd) “surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;
(zg) “surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4;
(2) Words and expressions used herein and not defined in this Act but defined in the Assisted Reproductive Technology Act shall have the meanings respectively assigned to them in that Act.
3. Prohibition and regulation of surrogacy clinics.—On and from the date of commencement of this Act,—
(i) no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures;
(ii) no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form;
(iii) no surrogacy clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment, who does not possess such qualifications as may be prescribed;
(iv) no registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person surrogacy or surrogacy procedures at a place other than a place registered under this Act;
(v) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person shall promote, publish, canvass, propagate or advertise or cause to be promoted, published, canvassed, propagated or advertised which—
(a) is aimed at inducing or is likely to induce a woman to act as a surrogate mother;
(b) is aimed at promoting a surrogacy clinic for commercial surrogacy or promoting commercial surrogacy in general;
(c) seeks or aimed at seeking a woman to act as a surrogate mother;
(d) states or implies that a woman is willing to become a surrogate mother; or
(e) advertises commercial surrogacy in print or electronic media or in any other form;
(vi) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorisation of the same by the appropriate authority concerned:
Provided that the authorisation of the appropriate authority shall be subject to, and in compliance with, the provisions of the Medical Termination of Pregnancy Act, 1971 (34 of 1971);
(vii) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall store a human embryo or gamete for the purpose of surrogacy:
Provided that nothing contained in this clause shall affect such storage for other legal purposes like sperm banks, IVF and medical research for such period and in such manner as may be prescribed;
(viii) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall in any form conduct or cause to be conducted sex selection for surrogacy.
REGULATION OF SURROGACY AND SURROGACY PROCEDURES
4. Regulation of surrogacy and surrogacy procedures.—On and from the date of commencement of this Act,—
(i) no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clause (iii);
(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:—
(a) when an intending couple has a medical indication necessitating gestational surrogacy:
Provided that a couple of Indian origin or an intending woman who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.
Explanation.—For the purposes of this sub-clause and item (I) of sub-clause (a) of clause (iii) the expression “gestational surrogacy” means a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) when it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures;
(d) when it is not for producing children for sale, prostitution or any other form of exploitation; and
(e) any other condition or disease as may be specified by regulations made by the Board;
(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:—
(a) the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely:—
(I) 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.
(II) an order concerning the parentage and custody of the child to be born through surrogacy, has been passed by a court of the Magistrate of the first class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be the birth affidavit after the surrogate child is born; and
(III) an insurance coverage of such amount and in such manner as may be prescribed 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 (41 of 1999);
(b) the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions, namely:—
(I) no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;
(II) a willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act:
Provided that the intending couple or the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother;
(III) no woman shall act as a surrogate mother by providing her own gametes;
(IV) no woman shall act as a surrogate mother more than once in her lifetime:
Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and
(V) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner;
(c) an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely:—
(I) 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;
(II) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier:
Provided that nothing contained in this item shall affect the intending couple who have a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and
(III) such other conditions as may be specified by the regulations.
5. Prohibition of conducting surrogacy.—No person including a relative or husband of a surrogate mother or intending couple or intending woman shall seek or encourage to conduct any surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of Section 4.
6. Written informed consent of surrogate mother.—(1) No person shall seek or conduct surrogacy procedures unless he has—
(i) explained all known side effects and after effects of such procedures to the surrogate mother concerned; and
(ii) obtained in the prescribed form, the written informed consent of the surrogate mother to undergo such procedures in the language she understands.
(2) Notwithstanding anything contained in sub-section (1), the surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of human embryo in her womb.
7. Prohibition to abandon child born through surrogacy.—The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like.
8. Rights of surrogate child.—A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.
38. Prohibition of commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy.—(1) No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall—
(a) undertake commercial surrogacy, provide commercial surrogacy or its related component procedures or services in any form or run a racket or an organised group to empanel or select surrogate mothers or use individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures, at such clinics, laboratories or at any other place;
(b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated, any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;
(c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy;
(d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner whatsoever;
(e) sell human embryo or gametes for the purpose of surrogacy and run an agency, a racket or an organisation for selling, purchasing or trading in human embryos or gametes for the purpose of surrogacy;
(f) import or shall help in getting imported in, whatsoever manner, the human embryo or human gametes for surrogacy or for surrogacy procedures; and
(g) conduct sex selection in any form for surrogacy.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), contraventions of the provisions of clauses (a) to (g) of sub-section (1) by any person shall be an offence punishable with imprisonment for a term which may extend to ten years and with fine which may extend to ten lakh rupees.
39. Punishment for contravention of provisions of Act.—(1) Any registered medical practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act (other than the provisions referred to in Section 38) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.
(2) In case of subsequent or continuation of the offence referred to in sub-section (1), the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration for a period of five years.
40. Punishment for not following altruistic surrogacy.—Any intending couple or intending woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person for not following the altruistic surrogacy or for conducting surrogacy procedures for commercial purposes shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees.
41. Penalty for contravention of provisions of Act or rules for which no specific punishment is provided.—Whoever contravenes any of the provisions of this Act, rules or regulations made thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees and in the case of continuing contravention with an additional fine which may extend to ten thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
42. Presumption in the case of surrogacy.—Notwithstanding anything contained in the Indian Evidence Act, 1872, (1 of 1872) the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of Section 4 and such person shall be liable for abetment of such offence under Section 40 and shall be punishable for the offence specified under that section.
43. Offence to be cognizable, non-baliable and non-compoundable.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.
44. Cognizance of offences.—(1) No court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by—
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person including a social organisation who has given notice of not less that fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
45. Certain provisions of Code of Criminal Procedure, 1973 not to apply.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said Code relating to plea bargaining shall not apply to the offences under this Act.
46. Maintenance of records.—(1) The surrogacy clinic shall maintain all records, charts, forms, reports, consent letters, agreements and all the documents under this Act and they shall be preserved for a period of twenty-five years or such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any surrogacy clinic, the records and all other documents of such clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorised by the appropriate authority in this behalf.
47. Power to search and seize records, etc.—
49. Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
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