On May 18, the Bombay High Court sought Mumbai-based Hinduja Hospital’s reply after a couple moved the court seeking to complete a surrogacy procedure, which commenced before Parliament passed the Assisted Reproductive Technologies (ART) Act and the Surrogacy Act in December 2021.
The couple had approached the hospital in October 2021 to undergo surrogacy after the wife had lost both her children and could no longer naturally give birth due to a medical issue. After completing fertilization, the embryos were cryopreserved at Thane.
Later, after the two laws mentioned above came into force in January 2022, the hospital told the couple that they could not transfer the embryos to the surrogate carrier as the new law prohibited it from treating the surrogate carrier. In response, the couple moved the Bombay High Court seeking transfer of the embryos to any other ART clinic.
The hospital argued that under the new law, such issues were to be solved by a national or state board which had to be set up within 90 days of the implementation of the ART Act. On the other hand, the couple pointed out that no such board has not been constituted as yet. Hence, keeping the lifespan of the embryos in mind, the couple argued that they had to move the Bombay HC as a last resort.
What are the provisions of the ART Act & Surrogacy Act?
Surrogacy (Regulation) Act:
First introduced in the Lok Sabha on July 15, 2019, the Surrogacy (Regulation) Bill was sent to a select committee. After a thorough revision of the Bill, the report was tabled before the standing committee on February 5, 2020. Later, during the 2021 winter session of the Parliament, both houses passed the Bill. It was signed by the President and came into force in January 2022.
What is surrogacy?
The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease. Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
Moreover, once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes. Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
Who can avail of surrogacy?
Under the Act, a couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 25-50 years and the husband is between 26-55 years. The couple must not have any living child (biological, adopted or surrogate.) A child with mental or physical disabilities, or one suffering from a life-threatening disorder or illness has been exempted from the above criterion.
The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court. They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications .
Who can be a surrogate?
A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who has been a surrogate only once in her life. She must also possess a certificate of medical and psychological fitness for surrogacy.
Who regulates surrogacy?
The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act. This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications. Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority.
Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
Assisted Reproductive Technology (ART) Act:
The ART Act was introduced in Lok Sabha in September 2020 and was sent to a Standing Committee for revisions. Later, along with the Surrogacy Act, it was passed in both Houses during the winter session of Parliament in December 2021. This law too came in force in January 2022.
What is ART?
ART is defined as all techniques used to obtain a pregnancy by handling the sperm or egg cell outside the human body and transferring the embryo into the woman’s reproductive tract. These include – sperm donation, in-vitro-fertilisation (IVF) (where the sperm is fertilized in a lab), and gestational surrogacy (child is not biologically related to surrogate).
Rules for ART clinics & banks
Every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India which will maintain a central database with details of such institutions. The registration of such clinics and banks is valid for five years and can be renewed for another five years. It may be cancelled or suspended if the institution violates the provisions of the Act.
Clinics are not allowed to provide a child of pre-determined sex and must check for genetic diseases before an embryo is implanted in a woman’s body.
Conditions for sperm donation & ART services
A registered ART bank can screen, collect and store semen from men aged between 21 and 55 years. It can also store eggs from women aged between 23 and 35 years. Under the Act, female donors need to be married with at least one child of their own, aged at least three. A woman can donate up to seven eggs only once in her life. A bank cannot supply the semen of one donor to more than one couple.
Such ART procedures require the written informed consent of both the couple and the donor. The couple seeking an ART procedure must provide insurance coverage for the female donor in case of loss, damage or death of the donor.
As mentioned above, clinics and banks are prohibited from advertising or offering sex-selective ART. Such an offence is punishable with imprisonment ranging between 5 to 10 years or/and a fine of Rs 10 to 25 lakhs.
A child born via an ART procedure will be deemed to be the couple’s biological child in the eyes of the law and is entitled all such rights. The donor does not retain any parental rights over the child.
Regulation of ART processes
The National and State Board formed under the Surrogacy Act are also expected to regulate ART services. These boards are to advise the government on policy, review and monitor implementation of the law, and formulate a code of conduct for ART clinics and banks.
Offences under this Act include abandoning or exploiting children born through ART; sale, purchase, or trade of embryos; exploiting the couple or donor in any form; and transfer of an embryo into a male or an animal. Such offences may attract a fine of Rs 5 to 10 lakhs for the first time. Subsequent offences are punishable with imprisonment for 8 to 12 years and a fine of Rs 10 to 20 lakhs.
What were the issues raised against these Bills?
Opposition law-makers argued that the ban on commercial surrogacy showed the Centre was ‘out-of-touch with ground realities.’ During the discussions in Parliament about the Bill, the Opposition also stated its belief that the Bill curtailed the rights of women surrogates under the garb of curbing exploitation.
Moreover, several villages in Gujarat are known for commercial surrogacy. As per reports, Anand, known for Amul’s dairy factory, has also acquired fame as India’s ‘surrogacy capital,’ offering lucrative monetary opportunities for impoverished women.
Dr. Nayana Patel, who runs the Akanksha Infertility Clinic in Anand, says, “A surrogate makes anywhere between Rs. 3 to 5 lakhs per pregnancy, depending on the commissioning parents, and the total cost of ”making a baby” is roughly Rs. 10 lakhs.”
Similarly in Hyderabad, IVF, surrogacy and egg donation have become a thriving business. Aspiring surrogate mothers are flocking to Hyderabad from places such as Rajahmundry, Srikakakulam, Mahabubnagar, West Godavari and Visakhapatnam. In Mumbai, couples pay Rs. 12 to 15 lakh for one surrogacy, of which the surrogate mother earns Rs. 3 to 4.5 lakhs.
Such practices have now been thrown into quandary with the passage of these two Acts.