Anaya Nolan
India has become a popular destination for surrogacy treatment due to its advanced medical facilities and affordable costs. However, the laws surrounding surrogacy in India are rapidly evolving, making it essential for intended parents, surrogate mothers, and fertility clinics to stay informed. The Surrogacy (Regulation) Act, 2021, outlines the rules and regulations for surrogacy arrangements in India, permitting only altruistic surrogacy for eligible Indian citizens and Overseas Citizens of India (OCIs) while strictly banning commercial surrogacy.
| Characteristics | Values |
|---|---|
| Surrogacy Definition | A practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after birth to the intending couple. |
| Regulation of Surrogacy | Prohibits commercial surrogacy, but allows altruistic surrogacy. |
| Purpose | Surrogacy is permitted when it is: for intending couples who suffer from proven infertility; altruistic; not for commercial purposes; not for unmarried couples, single parents, or same-sex couples. |
| Eligibility Criteria for Intending Couple | The couple must be Indian citizens, married for at least five years, within a certain age range (23-50 for the wife, 26-55 for the husband), and without any surviving children. |
| Eligibility Criteria for Surrogate Mother | Must be a close relative of the intending couple, a married woman with a child of her own, between 25 and 35 years old, a surrogate only once in her lifetime, and possess a certificate of medical and psychological fitness for surrogacy. |
| Registration of Surrogacy Clinics | Surrogacy clinics must be registered by the appropriate authority and must apply for registration within 60 days of their appointment. |
| National and State Surrogacy Boards | The central and state governments constitute the National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) to advise on policy matters, lay down the code of conduct for clinics, and supervise the functioning of SSBs. |
| Parentage and Abortion | A child born through surrogacy is deemed the biological child of the intending couple. Abortion requires written consent from the surrogate mother and authorisation from the appropriate authority. |
| Violations and Penalties | Violations include exploiting the surrogate mother, abandoning or disowning a surrogate child, and selling or importing human embryos. Penalties include up to 10 years of imprisonment and fines up to 10 lakh rupees. |
| Citizenship | Current Indian citizenship is required for both intending parents. The surrogate mother must also be an Indian citizen and a close relative of the intending couple. |
| Overall Surrogacy Success Rate | Between 75% and 95%, depending on the type of surrogacy program and factors such as age, health conditions, and clinic quality. |
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What You'll Learn
Surrogacy eligibility and requirements
Intending Couples:
- Indian Citizenship: Both intending parents must be Indian citizens. Non-Resident Indians (NRIs) may be eligible if they can demonstrate residency, but it is challenging due to practical obstacles. Overseas Citizens of India (OCIs) are explicitly excluded from the definition of "intending couples" and cannot use surrogacy services in India.
- Marriage: The couple should be legally married for at least five years. Only heterosexual couples are included; LGBTQ+ couples and live-in partners are not covered by the Act.
- Age: The husband should be between 26 and 55 years old, while the wife should be between 23 and 50 years old.
- Childlessness: The couple should not have any surviving child, whether biological, adopted, or through surrogacy. However, this does not include children with mental or physical disabilities or life-threatening conditions.
- Medical Necessity: At least one of the intending parents must have a medical condition that necessitates surrogacy, such as uterine absence or repeated IVF failure.
Surrogate Mothers:
- Relationship: The surrogate mother must be a close relative of the intending couple.
- Age and Wellness: She should be between 25 and 35 years old, have at least one child of her own, and be in good physical and mental health.
- Consent: Written, informed consent from the surrogate and her husband is mandatory.
- Compensation: Surrogates can only receive compensation for medical expenses and insurance coverage during pregnancy. Any additional financial compensation is prohibited.
- Frequency: A woman can only act as a surrogate once in her lifetime.
- Medical and Psychological Fitness: The surrogate must possess a certificate of medical and psychological fitness for surrogacy from an appropriate authority.
Surrogacy Clinics:
- Registration: Surrogacy clinics must be registered by the appropriate authority and apply for registration within 60 days of their appointment.
- National and State Surrogacy Boards: The central and state governments constitute the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) to advise on policy matters, lay down codes of conduct, and supervise surrogacy practices.
Other Considerations:
- Parentage: A child born through surrogacy is legally deemed the biological child of the intending couple and will have their names on the birth certificate.
- Abortion: Abortion of a surrogate child requires the written consent of the surrogate mother and authorisation from the appropriate authority.
- Violations and Penalties: Undertaking commercial surrogacy, exploiting the surrogate mother, abandoning a surrogate child, and selling or importing human embryos are offences punishable by up to 10 years of imprisonment and substantial fines.
The eligibility criteria and requirements aim to protect the rights and well-being of all parties involved in surrogacy arrangements in India.
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Surrogacy clinics and boards
Surrogacy clinics in India have been the centre of attention for many intending parents in industrialised nations due to their relatively low costs and easy access. Surrogacy clinics in India charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. This is about a third of the price in the UK and a fifth of that in the US.
However, the surrogacy landscape in India has undergone a significant shift in recent years. The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, have transformed the industry, impacting practices and success rates. The new laws prohibit commercial surrogacy and restrict access to surrogacy services to Indian citizens who meet specific eligibility criteria.
The Surrogacy (Regulation) Bill, 2019, introduced by the Minister of Health and Family Welfare, Dr Harsh Vardhan, defines surrogacy as a practice where a woman gives birth to a child for an intending couple, intending to hand over the child to the couple after birth. The bill prohibits commercial surrogacy, allowing only altruistic surrogacy, where the surrogate mother receives no monetary compensation beyond medical expenses and insurance coverage during pregnancy.
The bill outlines eligibility criteria for intending couples and surrogate mothers. To obtain a certificate of eligibility, the couple must be Indian citizens, married for at least five years, within a specified age range, and without any surviving children. The surrogate mother must be a close relative of the couple, a married woman with her own child, between 25 and 35 years old, and possess a certificate of medical and psychological fitness for surrogacy.
The National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) supervise the enforcement of surrogacy laws and are responsible for issuing eligibility certificates to intending parents and surrogates. The NSB advises the central government on policy matters, lays down the code of conduct for surrogacy clinics, and supervises the functioning of the SSBs.
Surrogacy clinics in India must be registered by the appropriate authority and apply for registration within 60 days of their appointment. Clinics like Surrogacy Services India offer comprehensive surrogacy packages, striving to maintain a diverse egg donor pool and providing transparent pricing. The overall surrogacy success rate in India ranges from 75% to 95%, depending on various factors such as age, health conditions, and clinic quality.
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Surrogacy violations and penalties
Surrogacy in India has undergone significant legal changes in recent years, with a shift from commercial surrogacy to altruistic surrogacy and restrictions on who can access surrogacy services. The Surrogacy (Regulation) Bill, first introduced in 2016 and passed by the Lok Sabha in 2019, aims to protect surrogate mothers and children born through surrogacy from exploitation.
The Surrogacy (Regulation) Bill outlines several offences and corresponding penalties to address violations and ensure compliance with the new regulations:
- Undertaking or Advertising Commercial Surrogacy: The bill prohibits commercial surrogacy, which includes any monetary compensation to the surrogate mother beyond her medical expenses and insurance coverage during pregnancy. Undertaking or advertising commercial surrogacy is an offence punishable by up to 10 years of imprisonment and a fine of up to 10 lakh rupees (approximately half a million USD).
- Exploitation of Surrogate Mother: Exploitation of surrogate mothers is strictly prohibited. This includes ensuring that the surrogate mother is a close relative of the intending couple, has given informed consent, and receives proper medical care and support during the process. Violations related to the exploitation of surrogate mothers carry the same penalties as mentioned above.
- Abandoning, Exploiting, or Disowning a Surrogate Child: The bill aims to protect the rights and well-being of children born through surrogacy. It is an offence to abandon, exploit, or disown a surrogate child, and those found guilty may face imprisonment of up to 10 years and substantial fines.
- Selling or Importing Human Embryos or Gametes for Surrogacy: The regulation of surrogacy clinics and procedures falls under the purview of the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs). Selling or importing human embryos or gametes for surrogacy is illegal and carries similar penalties to other offences, including imprisonment and hefty fines.
- Eligibility Violations: To be eligible for surrogacy, the intending couple must meet specific requirements, including Indian citizenship, a heterosexual marriage of at least five years, and medical necessity. Violating these eligibility criteria may result in the revocation of certificates of eligibility and denial of access to surrogacy services.
- Multiple Surrogacy Attempts: The bill stipulates that a surrogate mother can only undertake surrogacy once in her lifetime. Surrogates who violate this rule may face legal consequences, including potential penalties outlined in the bill for other violations.
- Non-Compliance with Standards: Surrogacy clinics must be registered and adhere to the standards enforced by the appropriate authorities. Non-compliance with registration requirements, code of conduct, or quality standards may result in suspension or cancellation of registration, as well as other penalties outlined by the appropriate authorities.
These violations and penalties aim to uphold the integrity of the surrogacy process, protect the rights and well-being of all parties involved, and prevent the exploitation or abuse of surrogate mothers and children.
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Surrogacy citizenship and nationality
Surrogacy in India has been a popular option for international couples due to its relatively low costs and easy access. However, the laws and regulations surrounding surrogacy in India have undergone significant changes in recent years, particularly regarding citizenship and nationality.
In 2015, the Indian government banned commercial surrogacy, and in 2016, the Surrogacy (Regulation) Bill was introduced, which further tightened the regulations. This bill proposed to permit only Indian heterosexual couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy, effectively banning foreigners from accessing surrogacy services in India. The bill was passed by the Lok Sabha, the lower house of the Indian parliament, in 2019.
The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, outline the current surrogacy laws in India. These laws require that at least one of the intended parents must be an Indian citizen, OCI (Overseas Citizen of India) or NRI (Non-Resident Indian). However, the acts only allow Indian citizens to use surrogates, and OCIs are expressly forbidden from using surrogacy services in India, even if they are married to an Indian citizen. NRIs may be eligible in theory, but they face practical obstacles, such as proving residency and finding a close relative surrogate.
The issue of citizenship for babies born via surrogacy in India has been a complex one. India does not offer dual citizenship, so children born to foreign parents through surrogacy in India must convert to OCI status if they hold non-Indian citizenship. This was demonstrated in the case of Manji Yamada, a baby born through surrogacy in India to Japanese parents, who was unable to leave the country for three months due to citizenship issues. The matter was eventually resolved with the intervention of the Indian and Japanese governments.
To ensure the welfare of surrogate mothers and children, the surrogacy laws in India include several regulations and requirements. These include age and wellness criteria for surrogates, the necessity of a close relationship between the intended parents and the surrogate, informed consent from the surrogate and her spouse, and strict prohibitions against exploitation or abandonment of surrogate mothers and children. The enforcement of these laws is supervised by the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs), who are responsible for issuing eligibility certificates to intended parents and surrogates.
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Surrogacy success rates
The overall surrogacy success rate in India is between 75% and 95%, depending on the type of surrogacy program, including self-cycle and donor cycle. The success rate of surrogacy in India is quite impressive, ranging from 60% to 80%, especially when done through experienced and well-equipped clinics. The success of surrogacy depends on many factors like the age and health of the egg donor, quality of the embryo, and the health of the surrogate mother.
The surrogacy success rate in India is higher for younger women in their early 20s who serve as suitable candidates to become surrogates. The success rate is also influenced by the surrogate's health, the embryo quality, and the intending parents' age or egg/sperm quality. If the surrogate is over 35 or has a medical issue, the success rate can drop to 30% or less.
The success rate of advanced procedures in India is 60% for Frozen Embryo Transfer (FET) surrogacy and 65% for Intracytoplasmic Sperm Injection (ICSI)-assisted surrogacy in cases of male infertility.
Altruistic surrogacy, which is the only type of surrogacy permitted under Indian law, involves no monetary compensation to the surrogate mother beyond the coverage of medical expenses and insurance during pregnancy. Commercial surrogacy, on the other hand, includes monetary benefits exceeding basic medical expenses and insurance coverage.
The surrogacy laws in India have undergone significant changes in recent years, with a shift from a system that permitted commercial surrogacy and access for foreigners to a thoroughly regulated framework that prioritizes altruistic surrogacy for Indian citizens with specific medical challenges. The Surrogacy (Regulation) Act of 2021 and the Assisted Reproductive Technology (Regulation) Act of 2021 outline the legal framework for surrogacy in India, with a focus on altruistic surrogacy and eligibility criteria for intended parents and surrogates.
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Frequently asked questions
The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, are the most recent pieces of legislation regarding surrogacy in India.
Only Indian citizens can use surrogates in India. They must be a heterosexual couple, married for at least five years, and be aged between 23-50 (wife) and 26-55 (husband). They must also not have any surviving children.
Surrogates must be close relatives of the couple, aged between 25-35, and have at least one child of their own. They can only be a surrogate once in their lifetime and must possess a certificate of medical and psychological fitness for surrogacy.
Violations of surrogacy laws in India include exploiting the surrogate mother, abandoning or exploiting a surrogate child, and selling or importing human embryos. Penalties for such violations include up to 10 years imprisonment and fines of up to 10 lakh rupees.
