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The Indian Surrogacy (Promotion & Regulation) Bill, 2012

Authors: Daya Shankar Tiwari & Ashwani Aman College of Legal Studies, University of Petroleum and Energy Studies Dehradun, Uttarakhand

The Indian Surrogacy (Promotion & Regulation) Bill, 2012

Long Title

With the advancement of technology, the extent of medical technology has also increased. The advancement in assisted reproduction of medical technology has changed the lives of many people. Surrogacy is an arrangement in which a woman carries and delivers a child for another couple or person. Surrogacy is bona fide use of medical technology, but without providing an arrangement to practice to surrogacy, the rights and duties of the parties to surrogacy cannot be determined. In determination of the interest of the public good, it is mandatory to prohibit commercialization of surrogacy, so that the parties to surrogacy are not in any means are exploited. In conscience to the exploitation, it is important to regulate surrogacy and provide a legitimate course to carry the practice of surrogacy. The bill determines the rights and duties of the parties to surrogacy and provides a legitimate course to practice surrogacy within the course of legal system and criminalize any offence of commercializing surrogacy.

Preamble An act for surrogacy arrangement, disabling commercialization of surrogacy, determining the right and justice to the parties, accessibility and reliability in delivery of such services and for matters connected therewith or incidental thereto.

Short title, extent and commencement 1. This Act may be called The Indian Surrogacy (Promotion & Regulation) Act, 2012 1) It extends to the whole of India except the State of Jammu and Kashmir including the tribal areas of northeast states, where customary laws have prevalence over an Act. 2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States and any reference in any such provision to the commencement of this Act shall, in relation to any State, be construed as a reference to coming into force of that provision in that State. Definitions 2. In this Act, unless the context otherwise requires,1) Act refers to, The Indian Surrogacy (Promotion & Regulation) Act, 2012. 2) AIIMS is All India Institute of Medical Science. 3)

Relevant

party includes birth mother, birth mothers spouse (at time of

agreement and time of birth) and intended parents. 4) Biological parents refer to the genetic parents.

5) Intended parents refers to the married couple who willing to procure child/children through surrogacy 6) child/children refer to any individual born to a surrogate mother and subject matter of surrogacy 7) donor means the donor of gametes or gametes but does not include the husband in intended parents who provides the sperm or the wife in intended parents who provide oocyte to be used in the process of fertilizing surrogacy 8) gamete means sperm and oocyte 9) Infertility means the inability of an individual to reproduce child/children. 10) National Board refers to National Surrogacy Assistance and Regulatory Board. 11) Married couple means two persons whose marriage is legal in the country(s) of which they are citizen. 12) Medical facility centre refers to the medical clinic and infrastructure required to carry out surrogacy. 13) State Board refers to various state board mandated under this Act. 14) surrogacy means a practice in which a women agrees to a pregnancy, achieved through assisted reproductive technology, in which neither games belong to her or her husband, with intention to carry it and hand it over the child/children to the person or persons for whom is she is agreed to do such practice. 15) Surrogacy contract means a contract between the person(s) availing surrogate child/children through assisted reproductive technology i.e. intended parents and the surrogate mother for carrying out surrogacy.

16) surrogate mother a women who agreed to practice of surrogacy and in process develops an embryo, which is not from the oocytes of her own and sperm of her husband, implanted in her to carry the pregnancy to viability and, deliver the child/children after birth to the couple/individual that had asked for surrogacy. Constitution of Board 3. Establishment of National Surrogacy Assistance and Regulatory Board: 1) With effect to such date as the central Government may, by notification, appoint, there shall be established a permanent Advisory and Regulatory Board to be known as the National Surrogacy Assistance and Regulatory Board hereafter referred to as National Board, to exercise the jurisdiction and power and discharge the function and duties conferred or imposed on the Board or under this Act with not exceeding more than twenty-five office holders.

2) The National Board shall consist of following members with following qualification : i. Chairman, a retired Secretary with at least ten years of experience in government administration. ii. Deputy Chairman, a distinguished lawyer with at least fifteen year of experience in litigation and know-how of contract and medical legislation. iii. Secretary, a senior scientist in field of assisted reproductive technology, recommended by AIIMS.

iv. Representative, not more than two members from Ministry of Health and Family Welfare, Government of India. v. Other office holder includes a) Three medical practitioners with at least ten years of practical experience of which at least one of them is gynecologist with specialization in invitro fertilization. b) Three dignitaries scholars from field of human right with experience of at least three years. c) Two lawyers with at least having a practical experience of three years. vi. And other supportive members as the board may require carrying out its function not exceeding ten in numbers.

4. The National Board shall reside in the capital of the Nation, Delhi, under a registered office with effect to such date as the central Government may, by notification. 5. The National Board may regulate and assist, and perform any other and task assigned to it by the Central Government including the following: 1) Regulation in respect of carrying out surrogacy. 2) Regulation in respect of maintenance of record. 3) supervising state boards 4) deciding the jurisdiction of state boards 5) The Board shall arrange for donor in case of both or either of intended parents is infertile.

6) registration of foreign citizen who want to carry out surrogacy in India 7) registration of surrogate mother for foreign citizens 8) guidelines for counseling and providing patient with all necessary information and advice on various aspects of surrogacy 9) performa of obtaining information from biological parents, surrogate mother, 10) to complete and review the procedure and enactments of contract signed between intended parents and surrogate mother 11) To enforce the obligation, rights and duties as prescribed in the contract. 12) To review the medical facility provided to the surrogate mother and the born child/children.

6. Within ninety days of issue of notification under sub-section (3) of Section 1, by notification in the Official Gazette, every State Government must establish a State Board for Surrogacy Assistance and Regulation, to discharge the function and power imposed on the State Boards by or under this Act. State Board of such state will have the jurisdiction in which the surrogate mother is a resident for at least five years or as per the discretion of National Board in case the married couple and surrogate mother belongs to two different states. 7. The State Board shall consist of not more than twenty members, as per the recommendation made by the National Surrogacy Assistance and Regulatory Board. 8. The State Board shall have a permanent residing office in the territorial boundaries of the State and shall perform any other and task assigned to it by the National Surrogacy Assistance and Regulatory Board or the State Government, including:

1) regulation in respect of carrying out surrogacy in State 2) The Board shall arrange for donor in case of both or either of intended parents is infertile. 3) Regulation in respect of maintenance of record. 4) Registration of India Citizen as intended parents for surrogacy. 5) to provide the records to National Surrogacy Assistance and Regulatory Board 6) Registration of surrogate mother for surrogacy. 7) guidelines for counseling and providing patient with all necessary information and advice on various aspects of surrogacy 8) Performa of obtaining information from intended parents , surrogate mother, 9) to complete and review the procedure and enactments of contract signed between intended parents and surrogate mother 10) To enforce the obligation, rights and duties as prescribed in the contract. 11) To review the medical facility provided to the surrogate mother and the born child/children. 12) To assist State Government in as may be need in any variance of surrogacy. Qualification for registrations and Grant of registration 9. Who shall apply for registration for surrogacy under this Act: 1) surrogate mother, i. who is above the age of 25 and having a maximum age of 40 years, is a citizen of India ii. Or a citizen of any other such country which do not bar the practice of surrogacy or carrying surrogacy by their citizen in f the territory of India.

2) intended parents , i. Shall be a valid married couple of which both are at least the age of twenty-one years, without any offspring reproduced of their own. ii. The reasons for the lack of offspring of their own could be any or all of the matters as a) due to infertility of one or both the intended parents b) complication which could result in serious harm to health if they reproduce of one or both the intended parents c) unspecified health condition of one or both the intended parents d) identified infertility or sterility of one or both the intended parents iii. and a citizen of India or any other country which accepts the child/children born through surrogacy by the surrogate mother in India who shall be able to register for surrogacy in India, 10. Essentials for grant of registration: 1) a surrogate mother shall have following document for grant of registration i. certificate declaring sound health, shall be certified by central or state medical officer ii. if married, a written consent of her husband, iii. age proof iv. affidavit for consent of surrogacy v. proof of citizenship

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vi. if not a citizen of India, a No Objection Certificate from the respective nation to which the surrogate mother is a citizen, clearly stating the permission for carrying out surrogacy in India 2) intended parents shall produce following for grant of registration i. the consent of biological couple in written ii. proof of age iii. marriage certificate iv. proof of citizenship v. if not a citizen of India , a No Objection Certificate from the respective nation to which they are citizen of , clearly stating the permission for granting the child/children born out of surrogacy in India, the citizenship of the nation to which the intended parents belongs vi. if the husband and wife, who are intended parents opting for surrogacy are citizens of two different country then they shall produce a No Objection Certificate from the respective nation as per their discretion to which either of the intended parents are citizen of , clearly stating the permission for granting the child/children born out of surrogacy in India, the citizenship of the nation to which the belongs 11. The State and National Board may grant the certificate for carrying surrogacy after verifying the documents produced by the surrogate mother and intended parents in the bona fide of the surrogate mother and intended parents as mentioned in the Act. Where shall a dispute arise, the decision of State Board shall be challenged in National Board. The decision of the National Board regarding the grant of registration shall be final.

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12. The decision of National Board can be challenged in the Supreme Court of India and the decision of Supreme Court of India shall be final in this context.

Surrogacy Contract 13. A surrogacy arrangement means an arrangement, agreement or understanding between a surrogate mother and intended parents under which the surrogate mother agrees to become, or try to become, pregnant with the intention that child born as a result of the pregnancy is to be treated as the child, not of the surrogate mother but of the intended parents ; and the surrogate mother will relinquish to the intended parents custody and guardianship of a child born as a result of the pregnancy; and intended parents agree to become permanently responsible for the custody and guardianship of a child born as a result of the pregnancy. The surrogacy agreement becomes surrogacy contract when signed by both the parties i.e. surrogate mother and the intended parents without any influence and is enforceable by law. 14. There may be other matters dealt with in a surrogacy arrangement as per the discretion of surrogate mother or intended parents or both. 15. The Surrogacy Contract enforceable under Indian legal system must be signed between the surrogate mother and intended parents , in pursuance of National or State Board, and shall have following condition: 1) For obligation on part of intended parents , i. shall bear all the cost incurred in carrying practice surrogacy

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ii.

shall accept the child/children without subject to any exception as their legal child/ children shall bear all the medical expenses of surrogate mother and the child/children

iii.

in case where both the intended parents are infertile then only the donor should be used in providing the sperm and oocytes, whereas if the parents partially infertile then the sperm or oocytes must be used who is able to reproduce as per the subject to inability, however if both the parents are able to reproduce then donor shall not be used to maintain the bond of love and affection between the intended parents and children/child.

iv.

in case the surrogate mother give birth to twins, and surrogate mother may have the discretion to surrogate both the child/children subject to discretion , then the intended parents have to accept both the child/children

v.

shall pay compensation if the surrogate mother suffer from any kind of disability of heath concerns

vi.

shall pay a requisite fees to the state of national board for services provided and additional fees if donor is arranged by the state or national board.

vii. viii.

abortion shall be barred on consent of intended parents shall fulfill all other genuine requirements pertaining to health facility of surrogate mother in future subject to approval of State or National Board.

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2) For obligation on part of surrogate mother i. shall handover the child/children to intended parents before the child/children complete six month ii. shall be responsible for taking care of child/children for the period the child/children is with the surrogate mother iii. shall be subject to other conditions as prescribed by the State Board or National Board iv. abortion shall be barred on consent on surrogate mother 3) The surrogacy contract should be drafted by the State Board or National Board and shall be signed by the intended parents and surrogate mother before the practice of surrogacy. Right and Duties of surrogate mother, intended parents and child/children. 16. Rights and duties of surrogate mother: 1) all information about the surrogate mother should be kept confidential and information about surrogacy done on them should not be disclosed to anyone other than the State Board or National Board. 2) the consent of surrogate mother must be voluntary 3) the surrogate mother have to enter in to a Surrogacy Contract enforceable under Indian legal system drafted by State or Nation and should be granted consideration as per the contract. 4) a proper medical and legal counseling shall be provided before the contract is signed to the surrogate mother

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5) shall be allowed to take care of the child/children till the child/children reaches an age of six months 6) no surrogate mother can act as a surrogate for more than three success full surrogate live birth. 7) a surrogate mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking surrogacy. 8) shall not directly contact the surrogate mother and after the completion whole process of surrogacy, shall not keep any contact with the surrogate mother 17. Right and Duties of Intended Parents: 1) shall enter the Surrogacy Contract enforceable under Indian legal system drafted by State or Nation 2) the intended parents shall have all parental right over the child/children 3) the intended parents are legally bound to accept the custody of the child/children subject to no exception. 4) a guardian should nominated and should be party to contract should be formulated between the intended parents and guardian so that if both the parents are dead before the birth of the child/children and if surrogate mother is not intending to accept the child/children then custody of child/children will be hand over to the guardian. 5) shall be obliged to welfare of child/children. 6) shall be debarred for surrogacy for more than one time 7) shall be obliged to take care of financial incurring of surrogate mother.

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8) shall ensure that surrogate mother and child/children are duly insured until the child is transferred to intended parents.

18. Rights of Child/ Children: 1) shall be regarded as an legitimate child of the intended parents 2) shall be allowed to know about the surrogate mother and donor, after the child/children complete twenty-one years of age in case of where intended parents are foreign citizen, the child/children even though born in India will not be regarded as citizen of India. 3) personal identification of the genetic parent or parents or surrogate mother may be released only in cases of life threatening medical conditions which require physical testing or samples of the genetic parent or parents or surrogate mother. Provided that such personal identification will not be released without the prior informed consent of the genetic parent or parents or surrogate mother. 4) the child/ children by surrogate mother for intended parents for the practice of surrogacy cannot be further given for adoption in his lifetime. Procedure for surrogacy 19. All the procedures of surrogacy and reproduction should be carried out in state or central owned medical centre or any other medical centre as per the discretion of State or National Board. Offence and Penalties 20. The Act prohibits commercial surrogacy arrangement and any practice of surrogacy which is not adherent to provision of the Act. Any contravention to this shall be

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punishable with imprisonment for a term which may extend to seven years and with fine which may be specified.

21. Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention of disclosure of identity 1) No State or National medical facility centre or medical facility centre recommended by State Board or National Board, where the practice of surrogacy had been carried out shall disclose any information regarding the surrogate mother or donor or intended parents or child/children. 2) No parties to surrogacy should use any technology to determine the pre-natal sex of the child/ children. 3) Any person who contravenes the provisions of this section shall be punishable with imprisonment for a term which may extend to seven years and with fine which may be specified. 22. Offences against Private Medical Centre recommended by State Board or national board: 1) Where any offence, punishable under this Act has been proven to be committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his

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knowledge or that he had exercised all due diligence to prevent the commission of such offence. 2) Notwithstanding anything contained in sub-section (1) of this section, where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed To be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation For the purposes of this section, 1. private Medical Facility means any private Medical Facility centre and includes a firm or other association of individuals, who own Medical Facility centre 2. Director, in relation to a firm, means a partner in the firm.

23. Use of individual brokers or paid intermediaries to obtain gamete donors or surrogates shall be an offence under this Act, punishable by imprisonment for a term which may extend to three years and fine which may be specified. 24. Notwithstanding anything in the Indian Evidence Act, 1872, the court shall presume, unless the contrary is proved, that the pregnant woman has been compelled by her husband or the relative to undergo pre-natal diagnostic technique. 25. Whoever contravenes any of the provisions of this Act or any rules made there under, for which no penalty has been elsewhere provided in this Act, shall be punishable with

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imprisonment for a term which may extend to three years, or with fine which may be specified, or with both, and in the case of continuing contravention, with an additional fine which may be specified. 26. Offence under this Act shall be cognizable.

Miscellaneous Provisions 27. 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 this Act as may appear to be necessary for removing the difficulty: Provided that no order shall be made under this section after the expiry of three years from the 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. 28. No suit, prosecution or other legal proceeding shall lie against the Central or the State Government or the National Board or State Boards or Registration Authority or any officer authorized by any of them, for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act. 29. No suit, prosecution or other legal proceeding shall lie against the Central or the State Government or the National Board or State Boards or Registration Authority or any officer authorized by any of them, for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.

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30. Power of the Central Government to make rules 1) The Central Government may make rules for carrying out the provisions of this Act. In particular, and without prejudice to the generality of the foregoing power, such rules may provide for i. ii. the minimum physical infrastructure requirements for an surrogacy the various assisted reproductive technology procedures to be adopted iii. iv. v. vi. vii. viii. ix. x. xi. the criteria for selecting an medical centre information and advice to, and counseling of patient; the eligibility of couples and individuals to use surrogacy ; the eligibility of donors; the eligibility of surrogate mothers; that a patient can be given a procedure; the maintenance of records; procedure to search and seize; the effective implementation of the Act.

31. Every rule made by the Central Government under sub-section (1) of this section 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

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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.