THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL, 2021;
The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
The Surrogacy (Regulation) Act, 2021.
Important definitions under the Act;
“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;
“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;
“Commercial surrogacy” means commercialisation of surrogacy services, etc, 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;
“Intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;
“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;
“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;
Registration of Clinics:
No surrogacy clinic, unless registered under the 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; (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; (vii) shall not store human embryo or gamete for the purpose of surrogacy and no sex selection shall be conducted.
(1) No person shall establish any surrogacy clinic for undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly registered under this Act.
(2) Every application for registration under sub-section (1) shall be made to the appropriate authority in such form.
Reasons for which surrogacy is allowed:
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:
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.
For the purposes of this item, the expression “District Medical Board” means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the district and comprising of at least two other specialists, namely, the chief gynaecologist or obstetrician and chief paediatrician of the district
Legal status 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 said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.
• (1) No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall—
o (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;
o (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;
o (c) abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy;
o (d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner whatsoever;
o (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;
o (f) import or shall help in getting imported in, whatsoever manner, the human embryo or human gametes for surrogacy or for surrogacy procedures; and
o (g) conduct sex selection in any form for surrogacy.
• (2) Notwithstanding anything contained in the Indian Penal Code, 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
1. Mr. Arun Sugavaneshvar, Advocate practicing at Madras High Court, with 10 years of experience in Family, IPR, and Property matters.
2. Sarfaras Feroz, 4th Year student of BBA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.