The Surrogacy (Regulation) Act, 2021

Summary of The Surrogacy (Regulation) Act, 2021
Overview
Purpose: Regulate surrogacy, establish regulatory bodies, and oversee the surrogacy process, ensuring ethical practices and protection of all parties involved.
Key Provisions
1. Types of Surrogacy
• Altruistic Surrogacy: Permitted, with no monetary compensation beyond approved medical and related expenses.
• Commercial Surrogacy: Strictly prohibited, with significant penalties for violations.
2. Eligibility Criteria
• Intending Couple/Woman:
• Must be a legally married Indian couple (with the man ≥21 years and the woman ≥18 years) or a single woman ≥25 years.
• Requires a medical necessity certificate and a court order establishing parentage.
• Surrogate Mother:
• Must be ever-married, with at least one child, and aged between 25-35 years.
• Mandatory voluntary participation with validated medical and psychological fitness.
3. Regulatory Framework
• National Assisted Reproductive Technology and Surrogacy Board: Oversees national regulation.
• State Assisted Reproductive Technology and Surrogacy Boards: Manage state-level regulation.
• Compulsory Registration of all surrogacy clinics, with strict standards enforcement.
4. Rights and Protections
• Surrogate Child: Legally recognized as the biological child of the intending parents, with full inheritance and social rights.
• Surrogate Mother:
• Right to withdraw consent prior to embryo implantation.
• Protected from exploitation and abandonment through legal safeguards.
5. Penalties for Non-Compliance
• Commercial Surrogacy Offences: Up to 10 years imprisonment and a ₹10 lakh fine.
• Other Violations: Varied penalties, including imprisonment and fines, depending on the offence.
6. Miscellaneous Provisions
• Abortion: Permitted only under the Medical Termination of Pregnancy Act, 1971, with the surrogate's consent.
• Record Keeping and Inspections: Clinics must maintain detailed records for 25 years, subject to authorized inspections.
7. Transitional and Operational Provisions
• Transitional Provision (Section 53): A 10-month gestation period for existing surrogate mothers to ensure their well-being.
• Power to Remove Difficulties (Section 54): The Central Government can issue orders to address implementation challenges within two years of the Act's commencement.
• Appointment of Appropriate Authorities (Section 35): Mandatory within 90 days for Union territories and states to oversee compliance and enforcement.
• Functions and Powers of Authorities (Sections 36 & 37): Include registration, standard enforcement, complaint investigation, and legal action against violations.

Legislative History:
The Surrogacy (Regulation) Act, 2021

Sources: India Code, Ministry of Health and Family Welfare Official Records

Short Title - The Surrogacy (Regulation) Act, 2021
Act Number / Year - Act No. 47 of 2021
Act ID (India Code) - 202147
Presidential Assent / Enactment Date - December 25, 2021
Official Gazette Publication - December 2021
Enforcement Date - January 25, 2022
Nodal Ministry - Ministry of Health and Family Welfare
Administrative Nodal Department - Department of Health Research

Precedent & Statutory Rationale
1. Curbing Commercialization and Ensuring Ethical Surrogacy:
o Prior to 2021, India emerged as a prominent hub for international and domestic commercial surrogacy due to lax regulations, which frequently led to the severe exploitation of vulnerable surrogate mothers, lack of legal protection for children born through surrogacy, and unethical practices by intermediary clinics.
o The legislation was enacted to completely prohibit commercial surrogacy while legally permitting and regulating altruistic surrogacy for eligible Indian couples facing medically proven infertility or medical conditions.
2. Institutional Mechanism and Safeguards:
o The Act provides a comprehensive framework to safeguard the rights and health of surrogate mothers and children, mandating that surrogacy be strictly altruistic, uncompensated (except for medical expenses and insurance coverage), and restricted to legally wedded Indian couples who meet specific criteria.
o It establishes the National Assisted Reproductive Technology and Surrogacy Board, State Boards, and appropriate registration authorities to monitor clinics, issue licenses, and penalize violations or commercial operations.

Parliamentary Trajectory & Enactment
• Formulation: Drafted and piloted by the Ministry of Health and Family Welfare (Department of Health Research) to create a protective, moral, and legally sound structure for surrogacy practices across the country.
• Parliamentary Passage: Tabled, debated, and passed by both Houses of Parliament, receiving Presidential Assent on December 25, 2021.
• Enforcement: Enforced on January 25, 2022.
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