Surrogacy has always been in limelight due to all the wrong reasons. Surrogacy practice in India has increased multifold in the past decade. Right from celebrities seeking surrogacy to complete their family at an older age, to single men and women wanting to experience parenthood, surrogacy, has come to rescue for many in past few years.
Unfortunately, surrogacy was not regulated in India by any act, this had resulted in increase of exploitation of surrogate mothers. Not to forget the exploitation of the process of surrogacy by the affluent who preferred to have a baby through surrogacy even if they were perfectly capable of carrying a pregnancy themselves.
On one end of the spectrum are surrogates who have been exploited by not being paid enough money while at the other end are those who made a difference to their lives because of surrogacy.
It took 7 years to bring a Surrogacy Regulation Act in India and finally on 25th Dec 2021, the bill was signed by our respected President and became an act. The intention behind the Regulation is praiseworthy, but it does leave a lot of unanswered questions.
Through this blog, we intend to peel one layer after the other and hopefully try and address the most common questions any intending couple may have related to surrogacy and the Indian surrogacy Act 2021.
How will the Surrogacy Act / Regulation change current surrogacy practice?
Current surrogacy practice in India is largely based on Surrogacy Bill 2016 which has been amended to accommodate many nuances primarily to safeguard surrogate mothers and ensure that no surrogate is exploited.
However, the decision to completely ban commercial surrogacy (where you monetarily compensate a surrogate mother) has been received with mixed reaction among the medical fraternity as well as the intending couple.
The current Surrogacy Act only allows Altruistic surrogacy, where surrogacy is done for altruistic reasons (selfless reasons) and not for money. In simpler words, in such surrogacy, surrogate mother does not charge anything for surrogacy and the intending parents only pay for the medical expense related to the entire process and medical insurance of the surrogate mother.
Current Surrogacy Law states that Commercial surrogacy is not permitted in India. What is commercial surrogacy?
Selling or buying or trading the services of surrogate mother is commercial surrogacy. Giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative comes under commercial surrogacy and is not permitted.
Only the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother is permitted by the current law.
Is Altruistic surrogacy even practical?
It has been almost ten years, since we have been doing surrogacy in our clinic, but we are yet to meet anyone who has been willing to undergo the process of surrogacy without financial compensation. It only seems like a logical way of compensating a person for the discomfort, loss of wages and substantial amount of pain during childbirth.
We are yet to understand the reason behind such a step, but do have faith in the system. Possibly, the amount of exploitation that surrogate mothers were subjected to at most places supersedes the ethical practice of surrogacy.
What are the pre-requisites for couples who wish to undergo surrogacy?
According to the Surrogacy act 2021-2022, any couple of Indian origin where the age of the woman is between 23 to 50 yrs and age of the man is between 26 to 55 yrs can seek surrogacy provided they do not have any living children of their own and they are declared fit to undergo surrogacy by appropriate authorities.
The intending couple will need to get a certificate of essentiality from the state authorities in order to proceed for surrogacy.
In which conditions is surrogacy allowed?
Surrogacy can be conducted for the following purposes:
- Couple or woman has to be of Indian Origin
- When an intending couple has a medical indication necessitating surrogacy. Certificate of recommendation from medical board has to be obtained. Application in a prescribed manner has been issued.
- When surrogacy is only done for altruistic purposes
- When surrogacy is not for commercial purposes
- Any other condition or disease as may be specified by regulations made by the Board
What are the medical indications for surrogacy?
- Woman has no uterus/missing uterus/abnormal uterus or uterus is surgically removed due to any medical condition.
- Intending parent or woman has repeatedly failed to conceive after multiple IVF or ICSI attempts (Recurrent Implantation Failure)
- Any woman who has had multiple pregnancy losses
- Any illness that makes it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening
Which certificates are required for Surrogacy to be done?
Please check the Flowchart which explains the Process Flow and Certificates needed:
1. Certificate of Medical Indication
2. Order or Parentage / Custody
3. Certificate of Medical & Psychological Fitness of Surrogate Mother
4. Insurance of Surrogate for 36 months by IRDA approved Insurance Provider.
What are the rules regarding who can become a surrogate mother?
1. Ever married (Currently married/Divorced/Widow) having a child of her own
- Age 25-35 at the time of Embryo Transfer
- Surrogate cannot provide her own gametes
- No woman shall act as surrogate mother more than once in her lifetime
- A certificate of medical psychological fitness for surrogacy from a registered medical practitioner
Surrogacy Law states that a surrogate mother has to be insured. What does that mean?
Insurance means an arrangement by which a company, individual or intending couple undertake to provide a guarantee of compensation for medical expenses, health issues, specified loss, damage, illness or death of surrogate mother.
Expenses incurred on such surrogate mother during the process of surrogacy have to be covered by insurance and the cost is borne by the intending couple.
What are the rules regarding surrogacy for Intending Couples who wish to avail surrogacy ?
- Intending couple should be married
- Age of Husband: 26-55 years on day of certification
- Age of wife: 23-50 on day of certification
- The intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier
- If a couple 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
What is a certificate of essentiality?
It is a certificate issued by appropriate authorities / board, after the following three clauses are fulfilled by the intending couple:
- A certificate issued by authorities of District Medical Board, indicating the need for surrogacy for the intending couple.
- Clear legal documentation related to parentage and custody of the child who will be born under surrogacy.
- An insurance coverage in favor of the surrogate mother from any Nationally recognized Insurer.
Is there any waiting period before one can opt for surrogacy?
Can surrogacy be offered or done by any ART clinic?
Only clinic registered as Surrogacy clinic can offer surrogacy. List of registered clinics is available with district appropriate authority.
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.
Can pregnancy attained by surrogacy be aborted later on?
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.
What is the insurance pre-requisites for surrogate mother?
An insurance coverage in favour of the surrogate mother for a period of thirty-six months covering postpartum delivery & complications is required to made from an insurance company recognised by the Insurance Regulatory and Development Authority.
Can the surrogate withdraw her consent?
Surrogate mother has the option of withdrawing her consent before implantation of embryo in her womb
Can gametes /oocytes / sperms / embryos be stored for the purpose of surrogacy ?
The legal current status is that stored / cryopreserved gametes cannot be used for Surrogacy. There are multiple appeals currently being lodged in this regard as many couples had stored their gametes before this law was introduced.
The law currently states: 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;
What are the rights of a child born through surrogacy?
A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the child shall be entitled to all the rights and privileges available to a natural child under any law.
What is the punishment for contravention of provisions of Surrogacy Regulation Act?
Contraventions of the provisions 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.
For couples, can Surrogacy be done with donor sperm?
In case of couples, both gametes have to be of parents. Both husband and wife have to be genetically related with the child which means donor sperm or donor oocytes is not permissible in case of couples.
In case of single woman who is either divorced or widow, sperm donation is permitted.
How many attempts of surrogacy procedure are permitted in surrogate mother?
There shall not be more than three attempts of surrogacy procedures on surrogate mother.
How many embryos can be transferred in the uterus of the surrogate mother?
Ideally only one embryo should be transferred in the uterus of the surrogate.
Only in special circumstances up to three embryos may be transferred – This will have to be decided with your fertility doctor.
Can a single man (divorced or unmarried or widow) get surrogacy done with donor oocytes?
No. Single men will not be granted right to opt for surrogacy
Do you need to be Indian Citizen to avail surrogacy facilities in India ?
Only couples of Indian origin, OCI or PIO holder can avail surrogacy in India.
Can a couple opt for surrogacy if they already have one child?
No. The only exception is in case the previous child is mentally or physically challenged, or suffers from life threatening disorder or fatal illness with no permanent cure.
Can single woman opt for surrogacy?
Yes. As long as a woman is of Indian origin between the age of 23 to 50 years, she can choose to become a parent through surrogacy. Single woman, divorced or widowed woman can seek surrogacy.
Can single men opt for surrogacy?
Unfortunately not. Single, divorced, widower or LGBT men cannot opt to become a parent through surrogacy in India. Seems very harsh, but the current Surrogacy regulation clearly excludes single Men from surrogacy.
Does the couple have to apply for surrogacy in the place of domicile or can they apply anywhere?
Preferable to apply from same state of domicile as State Authority grants permission for surrogacy.
Will the cost of surrogacy change post implementation of the Surrogacy Act 2021?
Even though the intending couple need not pay the surrogate, the lack of finding eligible altruistic surrogates as well as the paperwork in obtaining certificate of essentiality will definitely make the entire surrogacy process cost more than what it currently does.
As an intending couple who wishes to undergo surrogacy, what will change for me?
If you are a genuine intending couple with medical indication for surrogacy, the path to surrogacy will be same i.e. through a registered surrogacy clinic. However, due to increased paperwork at all levels, as well as insurance cover for surrogate, the time and effort taken will increase substantially. Finding an altruistic surrogate will be the most difficult step, unless you have a relative who is willing to become a surrogate mother for you.
The way forward!
In the future, any clinic that offers surrogacy will now need to be registered as a Surrogacy Clinic. All surrogacy clinic’s in the district will be regulated closely by the State/ District boards.
The penalty drawn by every party participating in commercial surrogacy is so high, that in theory, poor women will not be pushed to undergo surrogacy by their families just for the sake of money. No woman will be emotionally blackmailed by her husband and family to undergo surrogacy for just a few lakhs. But at the same time, we are skeptical that it may give rise to malpractice and corruption at many levels.
Hopefully, over a period of time there will be amendments in the surrogacy act, which will make the process easier and more practical.
Only time will tell, if the surrogacy act, will bring order or more chaos!