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The new laws relating to surrogacy and assisted reproduction, and related challenges

  • Published
    30th May, 2022


Surrogacy (Regulation) Act:

  • Surrogacy (Regulation) bill was introduced in the Lok Sabha in July 2019. It came into force in January 2022.
  • Surrogacy: The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
    • It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
    • Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
  • Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
  • Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.

Who can avail of surrogacy?

  • Under the Act, a couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
  • The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 25-50 years and the husband is between 26-55 years.
  • The couple must not have any living child (biological, adopted or surrogate.)
    • A child with mental or physical disabilities, or one suffering from a life-threatening disorder or illness has been exempted from the above criterion.
  • The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court.
    • They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications.

Who can be a surrogate?

  • A surrogate mother has to be a close relative of the couple, a married woman with a child of her own.
  • Aged between 25-35 years, she has been a surrogate only once in her life.
  • She must also possess a certificate of medical and psychological fitness for surrogacy.

Who regulates surrogacy?

  • The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act.
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.

Assisted Reproductive Technology (ART) Act:

  • The ART Act was introduced in Lok Sabha in September 2020. This law too came in force in January 2022.
  • Assisted Reproductive Technology (ART) incorporates medical procedures used primarily to address infertility.
  • It includes oral contraceptives that treat a woman's egg and a man's sperm.
  • Examples of ART services include
    • gamete donation (sperm or oocyte)
    • in-vitro-fertilization (egg fertilization)
    • pregnancy (the baby is not biologically related to the baby mother)

Rules for ART clinics & banks:

  • Every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India which will maintain a central database with details of such institutions.
  • The registration of such clinics and banks is valid for five years and can be renewed for another five years.
  • It may be cancelled or suspended if the institution violates the provisions of the Act.

Conditions for sperm donation & ART services

  • A registered ART bank can screen, collect and store semen from men aged between 21 and 55 years.
  • It can also store eggs from women aged between 23 and 35 years.
    • Under the Act, female donors need to be married with at least one child of their own, aged at least three.
    • A woman can donate up to seven eggs only once in her life.
  • A bank cannot supply the semen of one donor to more than one couple.
  • Such ART procedures require the written informed consent of both the couple and the donor.
  • The couple seeking an ART procedure must provide insurance coverage for the female donor in case of loss, damage or death of the donor.
  • A child born via an ART procedure will be deemed to be the couple’s biological child in the eyes of the law and is entitled all such rights.
    • The donor does not retain any parental rights over the child.
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