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Surrogacy Law In India - 2021

Surrogacy Services India provides compassionate and ethical practice.Surrogacy Services India provides compassionate and ethical practice.

A Detailed Overview of Surrogacy law in India 2021

In 2021, the Indian government enacted new legislation to regulate surrogacy within the country. The Surrogacy (Regulation) Act, 2021 establishes guidelines for surrogacy arrangements, prioritizing the welfare of surrogates, intended parents, and children born through surrogacy. This law prohibits commercial surrogacy and imposes strict criteria on who can participate as a surrogate or intended parent, ensuring ethical practices in the process.

What is Surrogacy

Surrogacy is an arrangement in which a woman (the “surrogate”) agrees to carry and give birth to a child for another person or couple (the “intended parents”). The intended parents are typically unable to carry a pregnancy to term themselves, due to various reasons such as infertility or a medical condition.

There are two main types of surrogacy:

  1. Traditional Surrogacy: In this type, the surrogate is biologically related to the child. She is artificially inseminated with the sperm of the intended father (or a sperm donor). The surrogate’s egg is used, so she is the child’s genetic mother. This is banned in India
  2. Gestational Surrogacy: In this type, the surrogate is not genetically related to the child. The embryo created through in vitro fertilization (IVF) using the egg and sperm of the intended parents (or donors) is implanted into the surrogate’s uterus. The surrogate carries the pregnancy, but has no genetic link to the child.

Surrogacy can be a complex process involving medical, legal, and emotional considerations, and it is regulated by the law.

Surrogacy Law in India 2021- Altruistic Surrogacy

The new surrogacy law in India prohibits commercial surrogacy to safeguard women from potential exploitation in profit-driven surrogacy arrangements. Under the Surrogacy (Regulation) Act, 2021, only altruistic surrogacy is permitted. This means a surrogate mother can carry a child solely to assist an individual or couple, with no financial compensation beyond medical expenses and insurance.

This regulation aims to maintain ethical and transparent surrogacy practices, ensuring the welfare of everyone involved. Furthermore, the law outlines specific criteria that must be fulfilled before an individual or couple can pursue surrogacy, reinforcing the need for responsible and well-regulated surrogacy processes in the country.

Under what conditions is Surrogacy allowed under the Indian Surrogacy (Regulation) ACT 2021?

  • Removal of Uterus or Congenital absence of a Uterus e.g.: MRKH 
  • Unicornuate Uterus
  • Asherman’s Syndrome
  • Multiple IVF Failures
  • Miscarriage/Recurrent Abortions
  • Any condition where pregnancy poses a high risk to the mother’s health or life for example- Kidney Transplant, Liver Transplant (Immunosuppressive Medications), Heart Disease, Severe Diabetes

Guidelines for Surrogacy in India as per Surrogacy (Regulation) Act 2021

  • As per the law, the intended couple must be lawfully married and meet specific age prerequisites.
  • Age of the female partner must fall between the range of 23 to 50 years, whereas the male partner must be in the age bracket of 26 to 55 years.
  • The couple must not have any biological offspring from a prior marital union.
  • The female partner should have a medical indication for surrogacy with valid medical reports to support this claim.
  • The new surrogacy law in India allows couples to opt for surrogacy under certain medical conditions, including MRKH, unicornuate uterus, multiple IVF failure, miscarriage, or abortion.
  • The willing surrogate mother should be married with at least one child of her own.
  • An unmarried woman may also qualify as an intended parent, provided she falls in the age group of 35 to 45 years and is either married, divorced, or widowed. If she has a surviving child from a previous marriage, she is ineligible for surrogacy.
  • Single males or same-sex couples are prohibited from surrogacy arrangements in India.
  • Medical Indication in the Intended Mother is a Must

Eligibility criteria for a woman to be a surrogate

  • Age 25-35 on the day of implantation, having a child of her own
  • No oocytes can be given by her. The intending couple should have self-oocytes and sperms
  • For intending woman- she can take sperm donor
  • One in her lifetime, maximum 3 attempts allowed
  • A certificate of medical and psychological fitness for surrogacy by RMP
  • Written informed consent by the mother after explaining known side effects of the procedure in her language he understands
  • She can withdraw her consent before implantation is done

Inclusions in the Surrogate Mother’s Consent

  • Implantation in her uterus of an embryo of the commissioning couple, who have been tested for infections with risk explained about window period of HIV
  • An agreement between her and commissioning couple, for medical and other expenses and conditions of surrogacy, the clinic will keep it confidential
  • 36 months general health insurance has been purchased by the intending couple
  • Willing to relinquish the rights to the newborn
  • Right to undergo MTP if advised by the doctor
  • Not to undrgo intercourse once the cycle preparation starts
  • No I/V abuse of drugs
  • No transfusion in last 6 months

Legal Requirements for surrogacy- documents required

  • Certificate of Recommendation from the District Medical Board (Reference ART Regulation ACT 2021 and Surrogacy Regulation ACT 2021)
  • An order containing the parentage and custody from the First-Class Judicial Magistrate. The order may also contain the following statement “The intending couple do not have a biological or adopted child”
  • If the above sentence cannot be included in the parentage and custody order: separate notary certification is required
  • An insurance coverage for a period of 36 months covering postpartum delivery complications from an insurance company
  • Original registered marriage certificate of both intending couple and surrogate woman
  • Original birth certificate of baby of the surrogate
  • Willingness of surrogate woman and willingness of husband of surrogate woman (in a language he/she understands)
  • In case of death of husband of the surrogate woman- original death certificate
  • A certificate of medical and psychological fitness for surrogacy procedures from RMP within 6 months
  • Age proof of both intending couple and surrogate woman
  • An eligibility certificate verifying that the intending parents fall within the age range of 23-50 (for females) and 26-55 (for males). This certificate must be issued by the appropriate authority and is applicable to Indian citizens, NRIs, Overseas Citizens of India ( OCIs), Persons of Indian Origin (PIOs), and foreigners married to Indian citizens.
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