Know Your Rights: Surrogacy in India, Post‑Surrogacy (Regulation) Bill
In this recurring series, we break down laws on family, health and education. Some may concern you, others may not, but either way — you’ll know your rights.
In the wake of the 19 December passing of the Surrogacy (Regulation) Bill, 2016, in the Lok Sabha, we break down what surrogacy in India now looks like — who can avail of surrogacy as a means to parenthood, and who can’t; who can become a surrogate, and who can’t; and what happens if people who ‘can’t,’ do.
What is surrogacy?
Gestational surrogacy is a process, often supported by a legal agreement, wherein a woman agrees to carry a pregnancy to term and give birth to a child or children, of another person or persons who will ultimately become the parent(s) of the newborn(s). To date, India has offered two types of surrogacy arrangements:
Commercial surrogacy: An arrangement in which the surrogate mother is paid to be impregnated with another person(s)’ embryo, via IVF, and carry a fetus to term.
Altruistic surrogacy: An arrangement in which the woman volunteers to be impregnated with another person(s)’ embryo, via IVF, and carry a pregnancy to term, without receiving any monetary compensation.
Is the Surrogacy (Regulation) Bill the law of the land yet?
Not quite yet, but it’s close; the bill is only awaiting approval in the Rajya Sabha to become a law.
What will this new surrogacy law change?
The new surrogacy law will ban commercial surrogacy in India, and will only allow people to opt for altruistic surrogacy.
Under this new surrogacy law, who can avail of surrogacy as a means to parenthood?
The soon-to-be law entitles only Indians to avail of surrogacy, and only if they are a childless, heterosexual couple who has been married at least five years; the new law sets further guidelines for these couples: The woman must be 23 to 50 years old, and the man must be aged between 26 and 55.
Additionally, in order to avail of surrogacy, these couples need a certificate of proven infertility (of either the woman, the man, or both) from a District Medical Board.
However, the Bill is not applicable to the states or citizens of Jammu and Kashmir.
Who cannot avail of surrogacy as a means to parenthood under the new law?
Foreigners, Non-Resident Indians and Persons of Indian Origin are barred from availing of surrogacy. Additionally, Indian citizens who are single, who already have children, who are in a live-in relationship, and/or are from the LGBTQ+ community, are all barred from applying for surrogacy, per the soon-to-be law.
Who can be a surrogate under the new law?
Women between the ages of 25 and 35 years can act as a surrogate, but only once in their lifetime. Further, the new law will only permit a woman to become a surrogate mother if she is “close relatives,” with the commissioning parents. The term “close relatives” has not been clearly defined.
How is the new law expected to be enforced?
The new law will provide for the formation of a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice of surrogacy. It also contains a provision for a jail term of up to 10 years and a fine of Rs 10 lakh for violations such as abandoning a child, or engaging in commercial surrogacy.