Surrogacy and Related Law

SURROGACY AND RELATED LAW

The Surrogacy process which helped many couples to become parents, who thought that it would never happen in their life. This in-vitro fertilisation process has been legal in India. In the year 2019 a regulation bill was passed in India to avoid commercialisation of surrogacy in country.

SURROGACY: A DETAILED VIEW

Surrogacy is the artificial fertilisation process used by the couples who cannot perform natural fertilisation process. There are two types of fertilisation processes – Natural surrogacy and gestational surrogacy.

In a Natural Surrogacy process, the sperm from a intended father or an anonymous donor and the egg from the mother is taken and fertilised through in-vitro fertilisation process and an embryo is formed. The formed embryo is placed in the mother’s womb. In this natural surrogacy process the baby belongs to the mother and the intended father.

Whereas in Gestational Surrogacy process, both the mother and father might not have capable fertilisation capacity. In traditional method, the mother is able to carry the baby, whereas in the gestational process the mother might not be willing to carry her baby. Women’s whose uterus is removed or infected uses the gestational surrogacy process.

In this gestational surrogacy process, the egg or the genetic material is taken from the intended mother and the sperm from the intended father are taken and an embryo is formed from those egg and sperm using in-vitro fertilisation. The embryo formed is inserted into a gestational surrogate . Gestational surrogate is a women who is able and willing to carry a pregnancy which doesn’t belong to her.

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In-vitro fertilisation (IVF) is a process which is done in test tube. In this process the egg from a female and the sperm frome are taken and fertilised in a test tube. As this process is done in a test tube it is known as In-Vitro Fertilisation.

THE REGULATION BILL OF SURROGACY :

The Minister of Health and Family Welfare , Dr. Harsh Vardhan presented this bill in Lok Sabha on July 15,2019.This bill is known as The Surrogacy (Regulation) Bill, 2019 .

The bill passed in Lok Sabha on August 05, 2019. Later bill was referred to select committee under Shri Bhupendar Yadav and finally the report of selected committee was presented on February 05, 2020 in Rajya Sabha.

This bill was passed to prohibit commercialisation of surrogacy in India. Which means that the surrogate mother should not be provided with any monetary benefits like cash apart from her medical bills and insurance coverage for the course of pregnancy. This bills wants surrogacy to be an Altruistic one i.e., not commercial.

Eligibility Criteria :

Through this bill many rules were introduced which are reducing the illegal percentage in surrogacy. The rules can be summed up as:

  • A surrogate should be a close relative to the couple.
  • She must be willing to carry a sperm of another person who is not her husband and oocyte from another women and she should agree to do so.
  • The surrogate should a Citizen of India or a resident in India. She should be married and have her own offspring.
  • Surrogate should be between 25-35 years old and should be mentally and physically fit to perform as a surrogate.
  • Another important criteria is, she should have never been performed a surrogacy before.
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A “ Certificate of Essentiality” and a “Certificate of Eligibility” are necessary for a couple to have a surrogate baby. The first certificate issues that the couple are proven infertile by District Medical Board.

The second certificate is issued to the couples who are :

  • Married for a minimum period of 5 years and are citizens of India.
  • Aged between 23-50 years wife and 26-55 years husband.
  • Who are not in a live-in relationship but are actually married .

Who are Unwilling to Surrogate :

The Regulation Bill also gave some criteria of people who are not supposed to surrogate.

  • AA women who is unmarried, divorced or widowed is not supposed to act as a surrogate.
  • Also the person who is raising her offspring on her own is not supposed to act as surrogate. Those people are known as Single Parents.
  • Homosexuals i.e., couples of same sex having sexual relationship are banned from being a surrogate.
  • Persons who doesn’t fit in usual division between male and female are not allowed to surrogate. Those persons are known as Transgender persons.
  • Foreign nationals or Overseas citizens of India are banned from using a surrogate mother from India.

NSB and SSBs :

The bill directed the central and state governments to constitute central and state level Board for surrogacy. The Central Level Board is known as National Surrogacy Board ( NSB) and the State Surrogacy Board (SSB) is for the state level.

Appropriate authorities are appointed within the period of 90 days after the enactment of the bill. Their functions were also briefly described. Their functions are :

  • Surrogacy clinic registrations.
  • Regulations of those registrations.
  • Maintaining guidelines and quality levels of surrogacy clinics.
  • Giving suggestions based on rules and regulations of the bill.
  • Taking actions against bill offenders.
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Theme of the Bill :

By passing this bill, many rules and regulations are made to perform surrogacy in India. By restricting to close relatives the objective of exploitation of surrogates might be prevented. With the restriction of surrogacy from monetary reasons it started preventing women to use surrogacy as a economic way to earn money.

The main concern of this bill is to make surrogacy as an Arbitrary one. The bill also approved time period for abortion to be given within 90 days.

CONCLUSION :

The Surrogacy (Regulation) Bill, 2019 was passed to end commercialisation of surrogacy and make it as arbitrary surrogacy. Through this bill many restrictions and rules are made which are aiming towards eliminating illegal and complicated surrogacies. This bill gave details instructions of who to perform surrogacy and who are banned from performing surrogacy. This bill restricted single parents, transgenders, homosexuals, unmarried and foreigners from performing Surrogacy. The complete rules for couples to become surrogate parents were also instructed in this bill. NSB and SSBs are formed for perfect implementation of the Regulation Bill. Surrogacy has been helping couples who found impossible to be parents and through this bill surrogacy was made legal and safe.

Author: D. Sravya Reddy,
Ifim Law School, 1st year, BBA LLB student

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