Surrogacy Regulation Act 2021

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Dr. Shivani Sachdev Gour M.D. DNB, M.R.C.O.G.
(UK) SCI IVF Centre New Delhi and Noida
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Surrogacy Regulation Act (SRA) 2021

• The Surrogacy (Regulation) Bill, 2019 was
  introduced by the Minister of Health and Family
  Welfare, Dr. Harsh Vardhan in Lok Sabha on July
  15, 2019 and passed on August 5 2019 but
  referred to Rajya Sabha Select Committee (2016
  Bill was referred in 2017 and 2019 bill was
  referred in 2019)
• 8th December 2021 Surrogacy Regulation Bill
  2021 was passed by the
• Rajya Sabha
• 25th December 2021 Surrogacy Regulation Act 2021
  was notified in the Gazette

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Surrogacy Regulation Act (SRA) 2021

• Surrogacy Regulation Act 2021 will come into
  force on the date of implementation which has
  not been given yet
• As of now January 2022 - all treatments are
  ongoing as per the current norms

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CURRENT LEGAL STATUS UNDER PcPNDT ACT
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At present the Surrogacy Contract between the
parties (as recognized by Supreme
Court in baby Yamadas case) and the Assisted
Reproductive Technique (ART) Clinics guidelines
are the main
guiding force for surrogacy arrangements
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Surrogacy Regulation Act (SRA) 2021 Definition
of Surrogacy/ Clinic/ Procedures
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WHO IS ELIGIBLE FOR SURROGACY UNDER
Surrogacy Regulation Act 2021

• Indian Infertile couple
• Legally married Indian man and woman gt 21 and gt
  18 yrs respectively
• have a medical indication necessitating
  Gestational Surrogacy
• are of the age of 23 - 50 yrs for the woman 26
  55 yrs for the man
• Do not have a child except one who is mentally/
  physically challenged/ suffers from a life
  threatening disorder or fatal illness with no
  permanent cure
• Widowed woman between age of 35 and 45 years
• Divorced woman between age of 35 and 45 years
• Indian origin couples (PIO/ OCI) with age
  criteria as above and
• medical indication for Surrogacy.

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WHO IS NOT ELIGIBLE FOR SURROGACY UNDER Surrogacy
Regulation Act 2021

• Single/ Widow/ Divorced Men
• Single unmarried women
• Couple in Live In Relationships
• LGBTQ intending parents
• Foreign couples (non OCI/ PIO)
• Intending couple who have a child already either
  biologically or through Adoption or Surrogacy
  except if the child is mentally/ physically
  challenged/ suffers from a life threatening
  disorder or fatal illness with no permanent cure

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Surrogacy Regulation Act (SRA) 2021 Who can be a
Surrogate Mother?

• Ever Married woman
• Age 25 to 35 years on day of implantation
• Has a child of her own
• Willing woman (not necessarily relative)
• Not to provide own gametes
• Only once in lifetime (number of attempts maybe
  as prescribed)
• Certificate of medical and psychological fitness
  from an RMP
• Must possess an Eligibility certificate issued by
  the AA
• Only for altruistic purposes not for commercial
  purposes

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Surrogacy Regulation Act (SRA) 2021 Pre
Requisites Before Starting The Procedure

• Intended Couple should possess Certificate of
  Essentiality issued by the AA
• Certificate of Medical Indication in favour of
  either or both of the Intending Couple or the
  Intending Woman necessitating Surrogacy from the
  Ditrict Medical Board
• An Order containing the parentage and custody of
  the child to be born by surrogacy passed by
  Magistrate Court which shall be the Birth
  Affidavit of the child
• Insurance coverage of such amount and manner as
  may be prescribed for the Surrogate Mother
  period of 36 months - covering postpartum
  complications - from an insurance company or
  Agent recognized by IRDA

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Surrogacy Regulation Act (SRA) 2021 Pre
Requisites Before Starting The Procedure Special
Consent in Local Language listing all known
complications/ side effects
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Surrogacy Regulation Act (SRA) 2021 What is
Altruistic Surrogacy
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Surrogacy Regulation Act (SRA) 2021 What is
Commercial Surrogacy
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Surrogacy Regulation Act (SRA) 2021 What is
Gestational Surrogacy
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Surrogacy Regulation Act (SRA) 2021 Financials
What is allowed for the Surrogate mother under
the Altruistic Surrogacy Arrangements?

• Medical Expenses
• Such other Prescribed Expenses incurred on the
  surrogate mother
• Insurance Coverage

Given to the Surrogate Mother/ her Dependents/
her Relatives
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Surrogacy Regulation Act (SRA) 2021 Financials
What is Prohibited for the Surrogate mother
under the Altruistic Surrogacy Arrangements?

• Charges
• Fees
• Remuneration
• Expenses
• Monetary Incentives of whatever nature cash or
  kind
• To Surrogate Mother or her dependents or her
  representatives

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Surrogacy Regulation Act (SRA) 2021
Registration of Clinics
Registration is valid for a period of 3
years Registration certificate to be displayed in
prominent position
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Surrogacy Regulation Act (SRA) 2021 What if the
Surrogate Mother changes her mind?
The Surrogate Mother shall have the option to
withdraw her consent for surrogacy before the
implantation of the embryo in her womb
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Surrogacy Regulation Act (SRA) 2021 Termination
of Pregnancy during Surrogacy

• Written consent of the Surrogate Mother
• Authorisation of the same by AA Subject to and
  in compliance of the MTP Act 1971
• No person/ organisation/ clinic/ Lab/ Clinical
  Establishment of any kind shall force the
  surrogate mother to abort at any stage of
  pregnancy except in such conditions as may be
  prescribed

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Surrogacy Regulation Act (SRA) 2021 Embryo/
Oocyte/ Sperm Freezing Prohibited?
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Surrogacy Regulation Act (SRA) 2021 Import of
Embryos/ Gametes
Completely prohibited
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Surrogacy Regulation Act (SRA) 2021
Advertisements Completely Prohibited
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Surrogacy Regulation Act (SRA) 2021 How many
embryos can be transferred?
? The number of oocytes/ embryos that can be
implanted shall be such as prescribed under the
rules
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Surrogacy Regulation Act (SRA) 2021 Rights of
the Child

• Deemed to be the biological child and entitled to
  all rights and privileges available to a natural
  child under any law for time being in force
• Strictly prohibits abandonment of the child in
  India or outside for any reason whatsoever
  including but not limited to any genetic or birth
  defect or any condition the same developing
  subsequently, sex of child, or conception of
  more than one baby or the like

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Surrogacy Regulation Act (SRA) 2021 Surrogacy
Registry
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Surrogacy Regulation Act (SRA) 2021 Surrogacy
Boards
Authorities involved in Surrogacy
Procedure National ART and Surrogacy Board State
ART and Surrogacy Board Appropriate Authority
AA District Medical Board
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Surrogacy Regulation Act (SRA) 2021
Cancellation of Registration
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Surrogacy Regulation Act (SRA) 2021 Offences
and Penalties
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Surrogacy Regulation Act (SRA) 2021 Offences
and Penalties
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Surrogacy Regulation Act (SRA) 2021 Offences
and Penalties
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Surrogacy Regulation Act (SRA) 2021 Offences
and Penalties Surrogate Mother presumed
innocent and compelled into surrogacy procedure
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? DATA FROM LEADING SURROGACY CLINICS ON
SURROGACY IN THE NEXT SLIDE
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REASON FOR SURROGACY
Multiple Fibroids Severe 4
Renal Transplant 2
Rheumatoid Arthritis 0
Severe Diabetes 1 Poor Ovarian Reserve with
Paralytic patients 1
Hypertension 1
Heart related problems 1
Asherman's Syndrome 1
MRKH
Cancer Patients or Survivors 2
Miscellaneous 8
Syndrome 1
Grade 3 Endometriosis 7
TB Endometrium with Multiple failed IVF Cycles
3 Incompetent Cervix 3
Multiple Miscarriages or Missed Abortion 12
Thin or Abnormal Endometrium 4
Hysterectomy 10
Asherman's Syndrome with Multiple failed IVF
Cycles 4
Absence of Uterus 8
Single Father 1 Recurrent Pregnancy Loss 1
RIF 3
Adenomyosis 3 Multiple Ectopic Pregnancies 2
Abnormal Uterus
Multiple failed IVF Cycles 12
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Lupus 1
Liver Cirrhosis 0
Kidney Disorders 1
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INSTAR GUIDELINES
? INSTAR recommends a min compensation of 2.25
lakhs for surrogate mothers irrespective of
state/ city)

• Full compensation after 28 weeks irrespective of
  the outcome of pregnancy
• Post delivery care for 6 months free of cost in
  relation to pregnancy
• Post miscarriage care for 3 months free of cost
  and compensation for next month of
• pregnancy and all medical expenses paid in case
  if miscarriage
• Recommendations in case of unfortunate events
  like ectopic pregnancy/ hysterectomy or rarest
  case of death Rs 50,000/ Rs 1 lakh/ Rs 5 lakhs
  minimum compensation
• Recommendations for Contracts LOCAL language is
  a must
• Recommendations in case the child is born with
  defects
• Condemns discrimination of girl child and follow
  the PCPNDT Act strictly
• Screening tests for surrogate mothers and IPs
  recommendations
• LOCAL Guardian (Nominees/ Parent separation
  guidelines) nomination is a must
• RESEARCH done by QUESTIONNAIRE to be presented
  and published
• MORE Research and Publications encouraged
• Providing Life Insurance to surrogate mothers

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2005 2014 PROPOSED Surrogacy BILL 2016
Intending Couple 23-50 male 26-55 female
Married life 5 yrs
surrogate 21-45 Married 23- 35 yrs Altruistic surrogacy 23-35 yrs Close relative
Not gt5 times Not more than 1 LB ,notlt2yrs interval Only once as surrogate with child of her own
Foreign couple allowed Indian, OCIs, PIOs NRIs, Indian citizen only. Donor gametes not allowed
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Surrogacy Regulation Act (SRA) 2021

• Close Relative replaced by willing woman for
  surrogate mother
• Intended couple Indian origin instead of Indian
  citizen PIO/OCI permitted?
• Single woman also allowed but age group 35 to 45
  at advanced age donor embryo may be only
  option
• Embryo not genetically related to surrogate
  mother means that donor gametes also likely to
  be allowed. 2016 Bill allowed genetic gametes
  only from Intended parents
• Insurance cover mandated 36 months
• Clause of harsh punishments persist
• Intending couple should not have any biological/
  adopted / surrogate child except mentally
  physically disabled ONE CHILD Norm
• Birth Affidavit instead of Birth Certificate
• Commercial surrogacy is banned no payments!
• Time period for transition and current cases
  status not specified

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Surrogacy is legitimate because no Indian law
prohibits it. Hon Supreme Court Judgement to be
followed till Bill is passed Commercial/
Compensated/ Altruistic surrogacy to be done for
Indian patients only.
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I do my best because Im counting on you
counting on me. Maya Angelou
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? NEWS UPDATES

• Surrogate Woman Entitled To Maternity Leave
  Benefits, To Distinguish Between A Surrogate
  Mother And Natural Mother Would Result In Insult
  HP High Court 2021
• In Maharashtra - Unable to bear a second child,
  the petitioner along with her husband, chose the
  route of surrogacy. The surrogate mother gave
  birth to a baby girl on 5-11-2012. With
  reference to the expected date of delivery, the
  petitioner sought maternity leave to take care of
  the surrogate child. The same was denied to her
  on the ground that the Leave Rules and the policy
  governing the Rules did not permit maternity
  leave for a surrogate child.
• The petitioner challenged the said denial by way
  of the present petition and won
• 5 High Courts have now given Maternity leave for
  Surrogacy

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• Women employees of the central government who
  have a child through surrogacy will be entitled
  to maternity leave, according to an official
  order of the personnel ministry. They can get
  paid maternity leave of 26 weeks (about 180
  days).
• The ministry has written to all central
  government departments about a Delhi High Court
  order of 2015 on the issue. All
  ministries/departments are advised to give wide
  publicity of its contents to the concerned
  officers, the personnel ministry said in its
  latest directive to all the ministries and
  enclosed a copy of the courts order with it.

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• With effect from Feb 2016, in Microsoft India
  Surrogacy leave for mothers has been
• introduced at 26 weeks.
• Amazon 26 weeks Whether you are a birthing
  mother or an adoptive one, Amazon sees no
  difference. ... paid leave of absence for up to
  26 weeks surrounding the birth or adoption of a
  child.
• Google 22-24 weeks of paid leave for mothers who
  give birth and 12 weeks for non- birthing
  parents.
• Diageo India has announced a 26-week paid leave
  to white-collar employees of all genders and
  sexual orientations entering parenthood through
  biological conception, surrogacy or adoption to
  improve gender equality, diversity and inclusion
  at the workplace.

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