Surrogacy
Surrogacy (Regulation)
Act:
The Surrogacy
(Regulation) Bill was first presented in the Lok Sabha on July 15,
2019, and it was then forwarded to a select committee. On
February 5, 2020, the report was
presented to the standing committee following a comprehensive amendment of the
Bill. Later, the Bill was approved by both houses of Parliament during the
winter semester of 2021. The President gave his signature
to it, and it became effective in January 2022.
What
is Surrogacy ?
According to the Act,
"surrogacy" is the practise of a woman bearing a child for a
prospective couple with the goal of giving it to them after birth. Only those
with noble intentions or couples who have a documented infertility or sickness
are allowed to use it. Surrogacy is not allowed to be used
for prostitution, sales, or any other types of commercial exploitation.
In addition, once the
child is born, it will be legally recognised as the couple's biological child.
Such a foetus may only be aborted with the surrogate mother's and the
authorities' approval and in accordance with the Medical Termination of
Pregnancy Act's rules.
Who can avail of
surrogacy?
According to the Act, a
couple must get certificates of eligibility and necessity in order to become
parents through surrogacy.
If a couple has been
married for five years, the wife is between the ages of 25 and 50, and the
husband is between the ages of 26 and 55, they are considered to be
"eligible." There cannot be any surviving children for the marriage
(biological, adopted or surrogate.) Children with physical or mental
disabilities, as well as those with illnesses or disorders that pose a serious
risk to their lives, are excused from the aforementioned requirement. If one or
both partners have proven infertility, the pair may be eligible for a "essential"
certificate from the District Medical Board as well as a Magistrate court
judgement establishing paternity and custody of the surrogate child. Additionally, the surrogate mother must be covered by insurance
for 16 months to cover any difficulties that may arise after delivery.
Who can be a surrogate?
A surrogate mother must
be a close relative of the intended parents, a married mother of one, aged 25
to 35, who has only ever served as a surrogate once. A certificate of her
physical and mental health for surrogacy is also required.
Who regulates surrogacy?
Within 90 days of the
Act's passage, the national government and the state governments are required
to establish the National Surrogacy Board (NSB) and State Surrogacy Boards
(SSB), respectively. This organisation is in charge of enforcing regulations
for surrogacy centres, looking into violations, and making recommendations for
changes. Furthermore, 60 days after the proper body has appointed a surrogacy
clinic, the facility must submit an application for registration.
Commercial surrogacy, the
sale of embryos, abuse, abandoning a surrogate child, and other offences are
covered by the Act. These are punishable by a fine of up to Rs. 10 lakh and a
sentence of up to 10 years in prison.
The Assisted Reproductive
Technology (ART) Act :
The Assisted Reproductive
Technology (ART) Act (introduced in Lok Sabha in September 2020) has been
assigned to a Standing Committee for modifications. Later, during the winter
session of Parliament in December 2021, it was approved in both Houses along
with the Surrogacy Act. In January 2022, this law also became operative.
What is ART?
The term "artificial
reproductive technology" (ART) refers to all procedures used to induce
ovulation by manipulating the sperm or egg cell outside the human body and
inserting the embryo into the female reproductive system. Sperm donation,
in-vitro fertilisation (IVF), when the sperm is fertilised in a lab, and
gestational surrogacy are a few examples of these (child is not biologically
related to surrogate).
Rules for ART clinics
& banks
Every ART bank and clinic
must register with the National Registry of Banks and Clinics of India, which
will keep an extensive database of information about these organisations. Such
clinics' and banks' registrations are valid for five years and can be extended
for an additional five years. If the institution transgresses the Act's rules,
it may be revoked or suspended.
Before implanting an
embryo in a woman's body, clinics are required to screen for genetic disorders
and are not permitted to produce a child of a predetermined sex.
Conditions for sperm
donation & ART services
Semen from men between
the ages of 21 and 55 can be screened, collected, and stored by an authorised
ART bank. Additionally, it can keep eggs from women between the ages of 23 and
35. The Act stipulates that female donors must be married and have at least one
child of their own who is at least three years old. Up to seven eggs may only
be donated once in a woman's lifetime. One donor's semen cannot be distributed
by a bank to more than one couple.
Such ART procedures
necessitate the donor's and the couple's signed informed permission. The female
donor must have insurance coverage for loss, injury, or death in order for the
couple seeking an ART procedure to proceed.
As previously stated,
clinics and banks are not allowed to promote or provide sex-selective ART. Such
a violation carries a sentence of 5 to 10 years in prison or/and a fine of 10
to 25 lakh rupees.
A child born through an
ART technique will be treated legally as the couple's biological child and be
granted all of these rights. No parental rights remain with the donor regarding
the child.
Regulation of ART
processes
ART services are
anticipated to be governed by the National and State Boards established under
the Surrogacy Act. These boards are tasked with giving policy advice to the
government, reviewing and overseeing how the law is being applied, and creating
a code of conduct for ART clinics and banks.
Offences
Exploiting the couple or
donor in any way, selling, buying, or trading embryos, abandoning or abusing
children produced through ART, and transferring an embryo into a male or an
animal are all prohibited under this Act. For the first time, such offences may
result in a punishment of between Rs 5 and Rs 10 lakhs. The punishment for
subsequent offences is between 10 and 20 lakhs rupees in fines and 8 to 12
years in prison.
What were the issues raised against these Bills?
Legislators in the
opposition claimed that the Center's prohibition on commercial surrogacy was
evidence that it was "out of touch with ground reality." The
Opposition expressed its opinion that the Bill restricted the rights of female
surrogates under the guise of reducing exploitation during deliberations of the
Bill in Parliament.
Furthermore, commercial
surrogacy is practised in a number of Gujarati areas. According to reports,
Anand, famous for housing Amul's dairy plant, has become regarded as India's
"capital of surrogacy," providing underprivileged women with
lucrative employment prospects.
A surrogate can earn
anywhere between Rs. 3 and 5 lakhs each pregnancy, depending on the
commissioning parents, and the entire cost of "creating a kid" is
approximately Rs. 10 lakhs, according to Dr. Nayana Patel of the Akanksha
Infertility Clinic in Anand.
In a similar vein, IVF,
surrogacy, and egg donation have flourished in Hyderabad. From regions like
Rajahmundry, Srikakakulam, Mahabubnagar, West Godavari, and Visakhapatnam,
hopeful surrogate moms are decamping to Hyderabad. Couples in Mumbai spend
between Rs. 12 and 15 lakh for a single surrogacy, with the surrogate mother
receiving between Rs. 3 and Rs. 4.5 lakh.
With the passing of these
two Acts, such practises are now in a predicament.
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