The Surrogacy (Regulation) Act, 2021
Administered Ministry: Ministry of Health and Family Welfare / Department of Health Research
Section
Section 41 Penalty for contravention of provisions of Act or rules for which no specific punishment is provided.
Whoever contravenes any of the provisions of this Act, rules or regulations made thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees and in the case of continuing contravention with an additional fine which may extend to ten thousand rupees for every day during which such contravention continues after conviction for the first such contravention.
Section 42 Presumption in the case of surrogacy.
Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of section 4 and such person shall be liable for abetment of such offence under section 40 and shall be punishable for the offence specified under that section.
Section 43 Offence to be cognizable, non-baliable and non-compoundable.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.
Section 44 Cognizance of offences.
(1) No court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by--
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person including a social organisation who has given notice of not less that fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person including a social organisation who has given notice of not less that fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.
Section 45 Certain provisions of Code of Criminal Procedure, 1973 not to apply.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said Code relating to plea bargaining shall not apply to the offences under this Act.
Section 46 Maintenance of records.
(1) The surrogacy clinic shall maintain all records, charts, forms, reports, consent letters, agreements and all the documents under this Act and they shall be preserved for a period of twenty-five years or such period as may be prescribed:
Provided that, if any criminal or other proceedings are instituted against any surrogacy clinic, the records and all other documents of such clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorised by the appropriate authority in this behalf.
Provided that, if any criminal or other proceedings are instituted against any surrogacy clinic, the records and all other documents of such clinic shall be preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorised by the appropriate authority in this behalf.
Section 47 Power to search and seize records, etc.
(1) If the appropriate authority has reason to believe that an offence under this Act has been or is being committed at any surrogacy clinic or any other place, such authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officers considers necessary, such surrogacy clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to all action taken by the appropriate authority or any officer authorised by it under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to all action taken by the appropriate authority or any officer authorised by it under this Act.
Section 48 Protection of action taken in good faith.
No suit, prosecution or other legal proceeding shall lie against the Central Government or the State Government or the appropriate authority or any officer authorised by the Central Government or the State Government or by the appropriate authority for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.
Section 49 Application of other laws not barred.
The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
Section 50 Power to make rules.
(1) The Central Government may, by notification and subject to the condition of pre-publication, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--
(a) the prescribed expenses under clauses (b), (f) and (q) of sub-section (1) of section 2;
(b) the minimum qualifications for persons employed at a registered surrogacy clinic under clause (iii) of section 3;
(c) the period and manner in which a person shall store human embryo or gamete under clause (vii) of section 3;
(d) the form and manner of application for obtaining certificate of recommendation from the Board under proviso to sub-clause (a) of clause (ii) of section 4;
(e) the insurance coverage in favour of the surrogate mother from an insurance company and the manner of such coverage under item (III) of sub-clause (a) of clause (iii) of section 4;
(f) the number of attempts of surrogacy or providing of gametes under the proviso to item (III) of sub-clause (b) of clause (iii) of section 4;
(g) the form in which consent of a surrogate mother has to be obtained under clause (ii) of section 6;
(h) the number of oocytes or embryos to be implanted in the uterus of the surrogate mother under section 9;
(i) the conditions under which the surrogate mother may be allowed for abortion during the process of surrogacy under section 10;
(j) the form and manner in which an application shall be made for registration and the fee payable thereof under sub-section (2) of section 11;
(k) the facilities to be provided, equipment and other standards to be maintained by the surrogacy clinics under sub-section (4) of section 11;
(l) the period, manner and form in which a certificate of registration shall be issued under sub-section (1) of section 12;
(m) the manner in which the certificate of registration shall be renewed and the fee payable for such renewal under sub-section (3) of section 12;
(n) the manner in which an appeal may be preferred under section 14;
(o) the qualifications and experiences of the Members as admissible under clause (f) of sub-section (2) of section 17;
(p) the procedures for conducting an inquiry against the Members under sub-section (2) of section 21;
(q) the conditions under which a Member of the Board eligible for re-appointment under section 24;
(r) the other functions of the Board under clause (g) of section 25;
(s) the manner in which reports shall be furnished by the State Assisted Reproductive Technology and Surrogacy Board and the Union territory Assisted Reproductive Technology and Surrogacy Board to the Board and the Central Government under clause (iii) of section 26;
(t) the other functions of the State Board under clause (iv) of section 26;
(u) the qualifications and experiences of the members as admissible under clause (f) of section 27;
(v) the age of the person to be appointed as a member, referred to in clause (f) of section 27, under the proviso to clause (b) of sub-section (1) of section 28;
(w) the procedures for conducting an inquiry against the members under sub-section (2) of section 31;
(x) the conditions under which the members of State Board eligible for re-appointment under section 34;
(y) empowering the appropriate authority in any other matter under clause (d) of section 36;
(z) the other powers of appropriate authority under clause (d) of sub-section (1) of section 37;
(za) the particulars of the details of registration of surrogacy clinics, cancellation of registration, etc., in such format under sub-section (2) of section 37;
(zb) the manner of giving notice by a person under clause (b) of sub-section (1) of section 44;
(zc) the period up to which records, charts, etc., shall be preserved under sub-section (1) of section 46;
(zd) the manner in which the seizure of documents, records, objects, etc., shall be made and the manner in which seizure list shall be prepared and delivered under sub-section (1) of section 47; and
(ze) any other matter which is to be, or may be, or in respect of which provision is to be made by rules.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--
(a) the prescribed expenses under clauses (b), (f) and (q) of sub-section (1) of section 2;
(b) the minimum qualifications for persons employed at a registered surrogacy clinic under clause (iii) of section 3;
(c) the period and manner in which a person shall store human embryo or gamete under clause (vii) of section 3;
(d) the form and manner of application for obtaining certificate of recommendation from the Board under proviso to sub-clause (a) of clause (ii) of section 4;
(e) the insurance coverage in favour of the surrogate mother from an insurance company and the manner of such coverage under item (III) of sub-clause (a) of clause (iii) of section 4;
(f) the number of attempts of surrogacy or providing of gametes under the proviso to item (III) of sub-clause (b) of clause (iii) of section 4;
(g) the form in which consent of a surrogate mother has to be obtained under clause (ii) of section 6;
(h) the number of oocytes or embryos to be implanted in the uterus of the surrogate mother under section 9;
(i) the conditions under which the surrogate mother may be allowed for abortion during the process of surrogacy under section 10;
(j) the form and manner in which an application shall be made for registration and the fee payable thereof under sub-section (2) of section 11;
(k) the facilities to be provided, equipment and other standards to be maintained by the surrogacy clinics under sub-section (4) of section 11;
(l) the period, manner and form in which a certificate of registration shall be issued under sub-section (1) of section 12;
(m) the manner in which the certificate of registration shall be renewed and the fee payable for such renewal under sub-section (3) of section 12;
(n) the manner in which an appeal may be preferred under section 14;
(o) the qualifications and experiences of the Members as admissible under clause (f) of sub-section (2) of section 17;
(p) the procedures for conducting an inquiry against the Members under sub-section (2) of section 21;
(q) the conditions under which a Member of the Board eligible for re-appointment under section 24;
(r) the other functions of the Board under clause (g) of section 25;
(s) the manner in which reports shall be furnished by the State Assisted Reproductive Technology and Surrogacy Board and the Union territory Assisted Reproductive Technology and Surrogacy Board to the Board and the Central Government under clause (iii) of section 26;
(t) the other functions of the State Board under clause (iv) of section 26;
(u) the qualifications and experiences of the members as admissible under clause (f) of section 27;
(v) the age of the person to be appointed as a member, referred to in clause (f) of section 27, under the proviso to clause (b) of sub-section (1) of section 28;
(w) the procedures for conducting an inquiry against the members under sub-section (2) of section 31;
(x) the conditions under which the members of State Board eligible for re-appointment under section 34;
(y) empowering the appropriate authority in any other matter under clause (d) of section 36;
(z) the other powers of appropriate authority under clause (d) of sub-section (1) of section 37;
(za) the particulars of the details of registration of surrogacy clinics, cancellation of registration, etc., in such format under sub-section (2) of section 37;
(zb) the manner of giving notice by a person under clause (b) of sub-section (1) of section 44;
(zc) the period up to which records, charts, etc., shall be preserved under sub-section (1) of section 46;
(zd) the manner in which the seizure of documents, records, objects, etc., shall be made and the manner in which seizure list shall be prepared and delivered under sub-section (1) of section 47; and
(ze) any other matter which is to be, or may be, or in respect of which provision is to be made by rules.
Section 51 Power to make regulations.
The Board may, with the prior approval of the Central Government, by notification, make regulations not inconsistent with the provisions of this Act and the rules made thereunder to provide for.—
(a) the fulfilment of any other condition under which eligibility certificate to be issued by the appropriate authority under sub-clause (d) of clause (v) of section 4;
(b) the time and place of the meetings of the Board and the procedure to be followed for the transaction of business at such meetings and the number of Members which shall form the quorum under sub-section (1) of section 19;
(c) the manner in which a person may be temporarily associated with the Board under subsection (1) of section 22;
(d) the time and place of the meetings of the State Board and the procedure to be followed for the transaction of business at such meetings and the number of members which shall form the quorum under sub-section (1) of section 29;
(e) the manner in which a person may be temporarily associated with the Board under subsection (1) of section 32; and
(f) any other matter which is required to be, or may be, specified by regulations.
(a) the fulfilment of any other condition under which eligibility certificate to be issued by the appropriate authority under sub-clause (d) of clause (v) of section 4;
(b) the time and place of the meetings of the Board and the procedure to be followed for the transaction of business at such meetings and the number of Members which shall form the quorum under sub-section (1) of section 19;
(c) the manner in which a person may be temporarily associated with the Board under subsection (1) of section 22;
(d) the time and place of the meetings of the State Board and the procedure to be followed for the transaction of business at such meetings and the number of members which shall form the quorum under sub-section (1) of section 29;
(e) the manner in which a person may be temporarily associated with the Board under subsection (1) of section 32; and
(f) any other matter which is required to be, or may be, specified by regulations.
Section 52 Rules and regulations to be laid before Parliament.
Every rule made by the Central Government and every regulation made by the Board under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation or notification.
Section 53 Transitional provision.
Subject to the provisions of this Act, there shall be provided a gestation period of ten months from the date of coming into force of this Act to existing surrogate mothers' to protect their well being.
Section 54 Power to remove difficulties.
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of the said Act as appear to it to be necessary or expedient for removing the difficulty:
Provided that no order shall be made under this section after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
Provided that no order shall be made under this section after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.