- Who can take up Surrogacy?�
Married couple between the age of 23 to 50 in case of females and 26 to 55 in case of male can take up Surrogacy – (Refer Section 4(iii) (c) (I) of the Surrogacy Regulation Act, 2021). The Couple intending to take up Surrogacy should not have their own child born either through Surrogacy/Adoption/Biologically. (Refer Section 4(iii) (c) (II) of the Surrogacy Regulation Act, 2021).
Single woman of Indian origin who are within the age of 35 to 45 years can take up surrogacy. (Refer Section 2(s) of the Surrogacy Regulation Act, 2021). As per this Act, only Widow or a Divorcee falls under the definition of a single woman, which means an unmarried woman cannot avail services of surrogacy under the Act. Unmarried or single men are also allowed to take up surrogacy under the Act.
Also, one main criterion to take up surrogacy under the Act is that the intending couple should have some medical indication that necessitates them to take up gestational surrogacy (Refer Section 2 (r) of the Surrogacy Regulation Act, 2021)
2. What are the types of Surrogacy? Which type of Surrogacy is practiced in India?�
There are 2 types of Surrogacy
a. Gestational Surrogacy:In Gestational Surrogacy, the Surrogate mother carries the child for the Intending couple through Implantation of the Embryo in the womb of the Surrogate mother, where the child will not be genetically related to the Surrogate mother. �
b. Traditional Surrogacy: In Traditional Surrogacy, the child will be genetically related to the Surrogate Mother and the Intending Father or any Anonymous Donor, where the Intending Father or any Anonymous Donor shall contribute the sperm. �
In these two types of Surrogacy, Gestational Surrogacy was widely practiced in India than the Traditional Surrogacy. According to the Surrogacy Regulation Act, 2021, the Surrogate mother cannot provide her own gametes to act as a Surrogate mother (Refer Section 4 (iii) (b) (III) of the Surrogacy Regulation Act, 2021).Therefore, only Gestational Surrogacy is allowed under the present Act.
3. Whether Foreign Nationals can take up Surrogacy in India?�
The Act specifies that the Intending Couple should be of “Indian Origin” (Refer Section 4 (ii) (a) of the Surrogacy Regulation Act, 2021). This means that the Foreign Nationals are not eligible to take up Surrogacy in India but Couple of Indian Origin who has settled abroad are eligible under the Act. Those couple should be an OCI (Overseas Citizen of India) card holder and should obtain a certificate of recommendation from the Board (Refer 4 (ii) (a) of the Surrogacy Regulation Act, 2021)
4. Whether commercial surrogacy is legal in India?�
Commercial Surrogacy is prohibited in India, and it is an offence under the Surrogacy Regulation Act, 2021. The Definition of Commercial Surrogacy is defined under Section 2 (g) of the Surrogacy Regulation Act, 2021where commercialization of surrogacy services is not permitted under the Act. This also includes, 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 mother. Only Altruistic Surrogacy defined under Section 2 (g) of the Surrogacy Regulation Act, 2021is permitted in India, where no charges, expenses, fees, remuneration or monetary incentive of whatever nature can be paid to the Surrogate mother except medical expenses, Insurance coverage and other expenses prescribed under the Act.
5. Whether the surrogate mother can be paid for anything other than the compensation?�
According to the Act, only the medical expenses and other prescribed expenses under the Act that are incurred on the surrogate mother can be paid to the Surrogate mother. Also, the Intending couple are required to take up insurance coverage for the surrogate mother for 36 months (about 3 years) covering Post Partum delivery complications as prescribed under Section 4 (iii) (a) (III) of the Act. If any remuneration is paid to the Surrogate mother, which is not prescribed under the Act, it is an offence punishable with imprisonment for a term which may extend to 5 years and with fine which may extend to 5 lakhs for the first offence and Rs. 10 Lakhs for subsequent offences with imprisonment which may extend to 10 years as prescribed under Section 40 of the Surrogacy Regulation Act, 2021.
6. Who can be a surrogate mother?�
A Surrogate mother should fulfill the conditions as given under Section 4 (iii) (b) of the Surrogacy Regulation Act, 2021. A surrogate mother should be married, with a child of her own, and should be between the age of 25-35 years on the day of implantation of the embryos into the womb of the Surrogate mother. A woman, who is coming forward to act as a Surrogate mother should be willing and should give her consent by writing. (Refer Section 6 of the Surrogacy Regulation Act, 2021).
7. Whether the consent of husband of the surrogate mother is required for acting as a surrogate mother?�
No specific provision mandates that the husband of the surrogate mother should give his consent in writing for the woman to act as a surrogate mother. It is also specified that the husband or any relative of the surrogate mother cannot encourage any procedure to be done on the Surrogate mother except whatever has been prescribed under Section 4 (ii) of the Act.
8. Whether advertisements can be made for sourcing of surrogate mother or egg donor?�
No advertisements, promotions, publications, etc can be made by any Surrogacy clinic, registered medical practitioner, gynecologist, pediatricians, embryologist or any other person for sourcing of Surrogate mothers, for promoting Commercial Surrogacy, or for inducing any woman to act as a Surrogate mother (Refer Section 3(5) of the Act). The term “Advertisement” is explained under Section 38 (3) of the Surrogacy Regulation Act, 2021 to include “any notice, circular, label, wrapper or any other document including advertisement through internet or any other media, in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal light, sound, smoke or gas.”
If any advertisement is made regarding commercial surrogacy that is prohibited under this Act, then it is punishable with imprisonment for a term which may extend to 10 years and with fine which may extend to 10 Lakh Rupees. �
9. What are the conditions to be satisfied by the Intending couple and the Surrogate mother for the grant of Certificate of essentiality?�
a. The intending couple or intending woman should obtain a certificate from the Surrogacy Board mentioning their medical indication that necessitates to take up the Surrogacy process. �
b. Any Magistrate of the first class or above should pass an order for the parentage and the custody of the child that is to be born through Surrogacy. This order shall be used as a birth Affidavit for the child, once the child is born. �
c. The intending couple should take up Insurance coverage for the Surrogate mother for 36 months (including post-partum delivery complications)�
d. The Intending couple should be granted a certificate of essentiality issued by the Appropriate Authority. �
e. The Intending couple should be granted a certificate of eligibility issued by the Appropriate Authority.�
f. The Surrogate mother should be granted a certificate of eligibility by the Appropriate Authority. �
On fulfillment of the above conditions, surrogacy procedures can be conducted for that couple.
Additional requirements for single woman and Foreign National couple:
In case of a single woman, or a couple of Indian Origin with Foreign Nationality, in addition to the above must obtain a Certificate of recommendation from the National Assisted Reproductive Technology and Surrogacy Board.
10. What are the conditions to be fulfilled by the Surrogate mother for grant of certificate of eligibility?�
The Surrogate mother must fulfill certain conditions for the Appropriate Authority to issue a certificate of eligibility. The conditions are
- The Surrogate mother should be married, within the age of 25-35 years with a child of her own.�
- The Surrogate mother should come forward willingly to act as a Surrogate mother for the intending couple, and then the Intending couple shall approach the Appropriate Authority. �
- The Surrogate mother should not provide her own gametes to the Intending couple to undergo Surrogacy services. �
- A woman can only act as a Surrogate mother for not more than one time in her lifetime. �
- A registered medical practitioner should provide a medical fitness certificate for the Surrogate mother. �
11. What are the conditions to be fulfilled by the Intending couple for grant of certificate of eligibility?��
The Intending couple must fulfill certain conditions for the Appropriate Authority to issue a certificate of eligibility. The conditions are
a. The Intending couple should be married, within the age of 23to 50 for male, and 26 to 55 for female.�
b. The Intending couple should not have any other child of their own�
c. Other conditions as per the regulations must be followed. �
Once the above process is over, the Intending couple becomes eligible for taking up surrogacy as prescribed under the Act.
12. What is a surrogacy clinic?�
Surrogacy clinic has been defined under Section 2 (ze) of the Act, which means surrogacy clinic, center or laboratory, conducting assisted reproductive technology services, invitro fertilization services, genetic counselling center, genetic laboratory, Assisted Reproductive Technology Banks conducting surrogacy procedure or any clinical establishment, by whatsoever name called, conducting surrogacy procedures in any form.
Surrogacy procedures have also been defined under Section 2 (zf) of the Act, which means all gynecological, obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryo in surrogacy.
13. Where can I find the list of the registered surrogacy clinics?�
The list of Registered Surrogacy Clinics where the intending couple can take up Surrogacy Treatment is found in National ART and Surrogacy Portal, for which the link is provided below:
The National ART & Surrogacy Registry is hosted at Department of Health Research, under Ministry of Health and Family Welfare (Govt. of India), which provides the list of clinics all over India along with the Address, Registration Number, E- Mail Id, Contact Number etc.
14. Is there an upper limit for the payment to be made to the surrogacy clinic?�
No upper limit or lower limit has been prescribed under the Surrogacy Regulation Act, 2021 and the Surrogacy Regulation Rules, 2022.
15. What is the Fee to be paid for the registration of a Surrogacy Clinic?�
In exercise of powers of Section 50 of the Surrogacy Regulation Act, 2021, the Ministry of Health and Family Welfare had made the Surrogacy rules, 2022 in which Rule 10 prescribes the form and manner of registration and Fee for a Surrogacy Clinic. As per the rule, Rupees 2 Lakh must be paid for the Surrogacy Clinic as an Application Fee, which is non-refundable (Refer Rule 10(2) of the Surrogacy Regulation Rules, 2022).
16. To whom should a complaint be lodged against a surrogacy clinic?�
A Complaint can be made to the Appropriate Authority mentioned under the Act. The Appropriate Authority is appointed in accordance with Section 35 of the Act. The Appropriate Authority shall then investigate the complaint, or Suo moto take legal action according to the Act. (Refer Section 36 of the Surrogacy Regulation Act, 2021)