SURROGACY ACT AND

ICMR GUIDELINES

- Sruthi R (210)
SURROGACY

Surrogacy means a practice whereby “a woman

agrees to bear child for an intending couple with the
intention of handing over the child after birth to the
couple”. (Surrogacy Act,2021)

Surrogacy – Derived from a Latin word meaning

“assigned to act in place of”
TYPES OF SURROGACY
 Traditional surrogacy : Surrogate mother is
impregnated with sperm of male of the intending
couple (Intrauterine insemination or Intracervical
insemination) . Ovum belongs to surrogate mother

 Gestational surrogacy : In vitro fertilized egg of the

couple is placed in uterus (in vitro fertilization and
Embryo transfer). Only the uterus is hired .
 Commercial surrogacy : surrogate mother receives
any benefit like cash, reward (except the medical
expenses and insurance coverage )

 Altruistic surrogacy : no monetary incentives ,

rewards received by mother . (except the medical
expenses and insurance coverage) . It is done
usually out of affection .
HISTORY
• 1976: Lawyer Noel Keane creates the first legal
surrogacy agreement for a California couple

• The first contested surrogacy case :

1985 – Baby M – the surrogate mother Mary
Beth failed to hand over the child to biological

parents Sterns and demanded custody .

• India’s first IVF baby – Kanupriya alias Durga in

1978
ICMR guidelines & Surrogacy act
Why ?

 Widespread Commercialization with no statutory

legislation to regulate .
 Women involved in surrogacy suffered from
exploitation , poor living conditions , low cost fertility
clinics.
 Case of Baby Manji Yamada (2008) - the inadequacy
of exiting law and the need to enforce stringent law
over surrogacy was brought to light .
Case of Baby Manji Yamada

Dilemma of a child abandoned by a surrogate

mother , when the biological parents
(Japanese couple) got separated and the
woman did not want the child. Father’s visa
got expired and returned to Japan. The baby’s
birth certificate mentioned the name of the
genetic father . An NGO filed a Habeas
corpus petition questioning the inadequacy of
existing law . Grandmother of the child filed a
petition under Article 32 of the Constitution-
gave permission to take child to Japan after
passport is issued .
ICMR guidelines
 A child born through surrogacy must be adopted by
the genetic parents

 Surrogacy should normally be considered to patients

with medical illness unable to carry baby to term

 Surrogate mothers should be covered of all expenses

associated with pregnancy. Documentary evidence of
financial arrangement must be available
 Advertisements should not be made
 Surrogate mother should not be over 45 years
 A relative , a known / unknown person can act as a
surrogate
 In case of relative , must be of same generation
 The surrogate mother must be tested for HIV and
must ensure she didn’t have
any IV infusion of drugs
blood tranfusions
 ( Similarly the semen is tested for HIV , Hepatitis B
and C)
 Shall act as a surrogate not more than thrice in her
lifetime
Thereafter ,

• Surrogacy (regulation) bill , 2016 – Banned

commercial surrogacy , exploitation , altruistic
surrogacy only for couples in need .

• Surrogacy (regulation ) bill , 2019 – surrogate

mother must be a close relative of the intending
couple , insurance coverage for 16 months , child
should not be abandoned

• Surrogacy (regulation) bill , 2020 – A willing woman

shall act as surrogate
Surrogacy (Regulation) Act,2021
 Passed by The Indian Parliament , on

25th December 2021

• To regulate the practice and process of

surrogacy

• Preventing commercialization and protecting the

interest of both the parties
Regulation of surrogacy and its procedures

Surrogacy shall be performed only for the following

purposes –

• The intending couple – Indian married couple and age

of male 26 to 55 years and female 23 to 50 years
• Do not have a biological surviving child / adopted
/surrogate child
• Has a medical indication necessitating surrogacy and
has a certificate of essentiality
• Has an order concerning the parentage and custody of
the child to be born passed by the court
Surrogate mother –

• Woman must be married , having a child of her own,

and between the age of 25 to 35 years
• A willing woman shall act as a surrogate
• Cannot act as a surrogate mother by providing her
own gametes
• Shall act as a surrogate mother only once in her
lifetime
• Certificate of medical and psychological fitness from
RMP
CONSENT
• Informed written consent have to be obtained from
the surrogate mother

Explaining all the side effects and consequences of

procedure in a language she understands

She has an option to withdraw her consent before the

implantation .

Consent of the intending couple – consent of both

husband and wife necessary
• Surrogacy should be only of Altruistic purposes

• It should not be for commercialization or commercial

purposes

• Not for producing children for sale or any other

exploitation

• Insurance coverage for 36 months (including

postpartum delivery complications) from an
insurance company under Insurance Regulatory and
Development Authority act , 1999

• Child should not be abandoned for any reason

• The child – biological child of intending couple

• Shall claim all rights and privileges as that of a

natural child

• Prescribed number of embryos can be implanted

( no more than 3 embryos )

• Should not abort unless it is necessary , if so , done

with the consent of surrogate mother

• Abortion done according to MTP act , 1971

Regulation & Registration of surrogacy clinics

To conduct surrogacies ,

• Register under the Act ( renewed every 3 years )

• No commercial surrogacies performed
• Qualified to perform ( RMP, paediatrician ,
gynaecologist , embryologist)
• Should not promote , publish , advertise or canvas
• Should not perform sex selection
• Should not store human gametes / embryo
• Maintain the documents for 25 years
 Offences and penalties

Any clinic , organization performing

 commercial surrogacy , advertising , exploitation the

child, selling human embryo, sex selection

Shall be punished with imprisonment up to 10 years and

fine up to 10 lakhs

 Subsequent offence – the registered medical

practitioner shall be suspended up to 5 years
 The intending couple taking aid of a clinic for
commercial surrogacy or compelles a woman to
render surrogacy service

Shall be punished with imprisonment up to 5 years and

fine up to 5 lakhs

Subsequent offence – imprisonment up to 10 years and

fine up to 10 lakhs
THANK YOU