Surrogacy Regulation Act 2021

Dr. Shivani Sachdev Gour
M.D. DNB, M.R.C.O.G. (UK)
SCI IVF Centre
New Delhi and Noida

Surrogacy Regulation Act
(SRA) 2021
The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of
Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15,
2019 and passed on August 5 2019 but referred to Rajya Sabha Select
Committee (2016 Bill was referred in 2017 and 2019 bill was referred in
2019)
 8th December 2021 Surrogacy Regulation Bill 2021 was passed by the
Rajya Sabha
 25th December 2021 Surrogacy Regulation Act 2021 was notified in the
Gazette

Surrogacy Regulation Act
(SRA) 2021
 Surrogacy Regulation Act 2021 will come into force on
the date of implementation which has not been given
yet
 As of now – January 2022 - all treatments are ongoing
as per the current norms

CURRENT LEGAL STATUS: UNDER
PcPNDT ACT

At present the Surrogacy Contract between the
parties (as recognized by Supreme Court in baby
Yamada’s case) and the Assisted Reproductive
Technique (ART) Clinics guidelines are the main
guiding force for surrogacy arrangements

Surrogacy Regulation Act (SRA) 2021
Definition of Surrogacy/ Clinic/ Procedures

WHO IS ELIGIBLE FOR SURROGACY UNDER
Surrogacy Regulation Act 2021
 Indian Infertile couple:
 Legally married Indian man and woman > 21 and > 18 yrs respectively
 have a medical indication necessitating Gestational Surrogacy
 are of the age of 23 - 50 yrs for the woman; 26 – 55 yrs for the man
 Do not have a child except one who is mentally/ physically challenged/
suffers from a life threatening disorder or fatal illness with no
permanent cure
 Widowed woman between age of 35 and 45 years
 Divorced woman between age of 35 and 45 years
 Indian origin couples (PIO/ OCI) with age criteria as above and
medical indication for Surrogacy.

WHO IS NOT ELIGIBLE FOR SURROGACY
UNDER Surrogacy Regulation Act 2021
 Single/ Widow/ Divorced Men
 Single unmarried women
 Couple in “Live In” Relationships
 LGBTQ intending parents
 Foreign couples (non OCI/ PIO)
 Intending couple who have a child already either biologically or through
Adoption or Surrogacy except if the child is mentally/ physically
challenged/ suffers from a life threatening disorder or fatal illness with
no permanent cure

Who can be a Surrogate Mother?
 Ever Married woman
 Age 25 to 35 years on day of implantation
 Has a child of her own
 “Willing woman” (not necessarily relative)
 Not to provide own gametes
 Only once in lifetime (number of attempts maybe as prescribed)
 Certificate of medical and psychological fitness from an RMP
 Must possess an Eligibility certificate issued by the AA
 Only for altruistic purposes not for commercial purposes

Pre Requisites Before Starting The Procedure
 Intended Couple should possess Certificate of Essentiality issued by the
AA
 Certificate of Medical Indication in favour of either or both of the
Intending Couple or the Intending Woman necessitating Surrogacy from
the Ditrict Medical Board
 An Order containing the parentage and custody of the child to be born by
surrogacy passed by Magistrate Court which shall be the Birth Affidavit of
the child
 Insurance coverage of such amount and manner as may be prescribed for
the Surrogate Mother – period of 36 months - covering postpartum
complications - from an insurance company or Agent recognized by IRDA

Pre Requisites Before Starting The Procedure
Special Consent in Local Language listing all
known complications/ side effects

What is Altruistic Surrogacy

What is Commercial Surrogacy

What is Gestational Surrogacy

Surrogacy Regulation Act (SRA) 2021 : Financials
What is allowed for the Surrogate mother under
the Altruistic Surrogacy Arrangements?
 Medical Expenses
 “Such other Prescribed Expenses” incurred on the
surrogate mother
 Insurance Coverage
Given to the Surrogate Mother/ her Dependents/ her
Relatives

Surrogacy Regulation Act (SRA) 2021 : Financials
What is Prohibited for the Surrogate mother
under the Altruistic Surrogacy Arrangements?
 Charges
 Fees
 Remuneration
 Expenses
 Monetary Incentives of whatever nature cash or kind
 To Surrogate Mother or her dependents or her
representatives

Surrogacy Regulation Act (SRA) 2021:
Registration of Clinics
Registration is valid for a period of 3 years
Registration certificate to be displayed in prominent position

What if the Surrogate Mother changes her
mind?
The Surrogate Mother shall have the option to withdraw
her consent for surrogacy before the implantation of the
embryo in her womb

Termination of Pregnancy during Surrogacy
 Written consent of the Surrogate Mother
 Authorisation of the same by AA
Subject to and in compliance of the MTP Act 1971
 No person/ organisation/ clinic/ Lab/ Clinical
Establishment of any kind shall force the surrogate mother
to abort at any stage of pregnancy except in such conditions
as may be prescribed

Embryo/ Oocyte/ Sperm Freezing : Prohibited?

Import of Embryos/ Gametes
Completely prohibited

Advertisements Completely Prohibited

Surrogacy Regulation Act (SRA) 2021 :
How many embryos can be transferred?
 The number of oocytes/ embryos that can be
implanted shall be such as prescribed under the rules

Rights of the Child
 Deemed to be the biological child and entitled to all rights and
privileges available to a natural child under any law for time being in
force
 Strictly prohibits abandonment of the child in India or outside for any
reason whatsoever including but not limited to any genetic or birth
defect or any condition the same developing subsequently, sex of child,
or conception of more than one baby or the like

Surrogacy Registry

Surrogacy Boards
Authorities involved in Surrogacy Procedure
National ART and Surrogacy Board
State ART and Surrogacy Board
Appropriate Authority AA
District Medical Board

Cancellation of Registration

Offences and Penalties

Offences and Penalties: Surrogate Mother
presumed innocent and compelled into
surrogacy procedure

 DATA FROM LEADING SURROGACY CLINICS ON
SURROGACY IN THE NEXT SLIDE

REASON FOR SURROGACY
Renal Transplant
2%
Multiple Fibroids
4%
Severe
Hypertension
1%
Severe
Diabetes
1%
Poor Ovarian Reserve with
Asherman's Syndrome
1%
MRKH
Syndrome
1%
Grade
3 Endometriosis
7%
TB Endometrium with
Multiple failed IVF Cycles
3%
Incompetent Cervix
3%
Thin or Abnormal
Endometrium
4%
Asherman's Syndrome with
4%
Absence of Uterus
8%
Adenomyosis
3%
Multiple Ectopic
Pregnancies
2%
12%
Kidney Disorders
1%
Liver Cirrhosis
0%
Lupus
1%
Abnormal Uterus
4%
RIF
3%
Recurrent Pregnancy Loss
1%
Single Father
1%
Hysterectomy
10%
Multiple Miscarriages or
Missed Abortion
12%
Cancer Patients or
Survivors
2%
Heart related problems
1%
Paralytic patients
1%
Miscellaneous
8%
Rheumatoid
Arthritis
0%

 INSTAR recommends a min compensation of 2.25 lakhs for surrogate
mothers irrespective of state/ city)
 Full compensation after 28 weeks irrespective of the outcome of pregnancy
 Post delivery care for 6 months free of cost in relation to pregnancy
 Post miscarriage care for 3 months free of cost and compensation for next month of
pregnancy and all medical expenses paid in case if miscarriage
 Recommendations in case of unfortunate events like ectopic pregnancy/
hysterectomy or rarest case of death; Rs 50,000/ Rs 1 lakh/ Rs 5 lakhs minimum
compensation
 Recommendations for Contracts: LOCAL language is a must
 Recommendations in case the child is born with defects
 Condemns discrimination of girl child and follow the PCPNDT Act strictly
 Screening tests for surrogate mothers and IPs : recommendations
 LOCAL Guardian (Nominees/ Parent separation guidelines) nomination is a must
 RESEARCH done by QUESTIONNAIRE to be presented and published
 MORE Research and Publications encouraged
 Providing Life Insurance to surrogate mothers
INSTAR GUIDELINES

2005 2014 PROPOSED
Surrogacy BILL
2016
Intending
Couple
23-50 male
26-55 female
Married
life
5 yrs
surrogate 21-45 Married 23-
35 yrs
Altruistic surrogacy
23-35 yrs Close relative –
Not >5
times
Not more
than 1 LB
,not<2yrs
interval
Only once as surrogate with
child of her own
Foreign
couple
allowed
Indian,
OCIs,
PIOs NRIs,
Indian citizen only. Donor
gametes not allowed

 Close Relative replaced by “willing woman” for surrogate mother
 Intended couple “Indian origin” instead of Indian citizen :PIO/OCI
permitted?
 Single woman also allowed but age group 35 to 45 : at advanced age
donor embryo may be only option
 Embryo not genetically related to surrogate mother – means that donor
gametes also likely to be allowed. 2016 Bill allowed genetic gametes
only from Intended parents
 Insurance cover mandated 36 months
 Clause of harsh punishments persist
 Intending couple should not have any biological/ adopted / surrogate
child except mentally physically disabled – ONE CHILD Norm
 Birth Affidavit instead of Birth Certificate
 Commercial surrogacy is banned – no payments!
 Time period for transition and current cases status not specified

Surrogacy is legitimate because no Indian law prohibits it.
Hon Supreme Court Judgement to be followed till Bill is
passed
Commercial/ Compensated/ Altruistic surrogacy to be done
for Indian patients only.

I do my best because
I’m counting on
you counting on me.
Maya Angelou

 NEWS UPDATES
 Surrogate Woman Entitled To Maternity Leave Benefits, To Distinguish
Between A Surrogate Mother And Natural Mother Would Result In Insult HP
High Court 2021
 In Maharashtra - Unable to bear a second child, the petitioner along with her
husband, chose the route of surrogacy. The surrogate mother gave birth to a
baby girl on 5-11-2012. With reference to the expected date of delivery, the
petitioner sought maternity leave to take care of the surrogate child. The same
was denied to her on the ground that the Leave Rules and the policy governing
the Rules did not permit maternity leave for a surrogate child.
 The petitioner challenged the said denial by way of the present petition and
won
 5 High Courts have now given Maternity leave for Surrogacy

 Women employees of the central government who have a child through
surrogacy will be entitled to maternity leave, according to an official order of
the personnel ministry. They can get paid maternity leave of 26 weeks (about
180 days).
 The ministry has written to all central government departments about a Delhi
High Court order of 2015 on the issue. “All ministries/departments are advised
to give wide publicity of its contents to the concerned officers,” the personnel
ministry said in its latest directive to all the ministries and enclosed a copy of
the court’s order with it.

 With effect from Feb 2016, in Microsoft India Surrogacy leave for mothers has been
introduced at 26 weeks.
 Amazon – 26 weeks – Whether you are a birthing mother or an adoptive one, Amazon
sees no difference. ... paid leave of absence for up to 26 weeks surrounding the birth
or adoption of a child.
 Google 22-24 weeks of paid leave for mothers who give birth and 12 weeks for non-
birthing parents.
 Diageo India has announced a 26-week paid leave to white-collar employees of all
genders and sexual orientations entering parenthood through biological conception,
surrogacy or adoption to improve gender equality, diversity and inclusion at the
workplace.

Surrogacy Regulation Act 2021

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