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Close Relatives Only, No Payment: What You Should Know About the New Surrogacy Bill

Among many requirements, the ‘close relative’ must have herself given birth to a child earlier, must not be an NRI and must be between the age of 25-35.

In a significant development, the Lok Sabha on Wednesday passed the Surrogacy (Regulation) Bill 2016.

Among other things, the bill allows for only altruistic surrogacy by infertile couples, who have been legally married for at least five years.

Surrogacy refers to an arrangement (often supported by a legal agreement) whereby a couple, for whatever reason, commissions another woman (a.k.a surrogate) to become pregnant, carry the pregnancy and give birth to a child or children.

Surrogacy: For representational purposes only. (Source: Public Radio International)
Surrogacy: For representational purposes only. (Source: Public Radio International)

Here are six things you should know about the Surrogacy (Regulation) Bill 2016:

1) Only childless couples between the ages of 23-50 years and 26-55 years for female and male respectively, who have been legally married for a minimum of five years, are allowed to engage in surrogacy with a woman who is a “close relative” of the couple.

The ‘close relative’ must have herself given birth to a child earlier in her life, must not be an NRI or a foreign national, be between the age of 25-35 years and is eligible to become a surrogate only once in a lifetime.


On that subject, respondents to an extensive Maadhyam survey published in The Better India had a few interesting observations.

Under this provision “there is a real threat that women can be forced to undertake surrogacy for their relatives and that too without any compensation; it is likely to lead to family disputes in the future and could negatively affect the emotional and mental well-being of the child,” said respondents in the survey published last year.

As per the bill, couples who do not have a large “close” family or have family members unwilling to undergo surrogacy, cannot have a child through the process. They will have to go for adoption.

2) In an attempt to shut down exploitative surrogacy shops, the bill only allows for altruistic surrogacy, whereby surrogate mothers undergo this process out of love – without receiving any monetary benefit in return except payment for medical expenses and insurance cover.

On this issue, the respondents to the Maadhyam Survey believed that “…a commercial contract is better suited to protect the rights of all parties involved since it is legally enforceable”.

In other words, don’t deny surrogates their rightful compensation for their reproductive labour and instead of skirting around the issue establish a robust regulatory framework around the process to prevent exploitative surrogacy shops from coming up.

3) Unmarried and homosexual couples cannot apply for surrogacy. Though denying homosexual couples the right to have a child through surrogacy might possibly be a contravention to their Fundamental Rights.

4) The United Cabinet approved this bill on August 24, 2017. It was introduced in Parliament in November 2016 and later referred to a parliamentary standing committee on Health and Family Welfare two months later in January 2017.

5) Once the Bill is enacted, the Centre will constitute a National Surrogacy Board, while States and UTs will set up their own respective State Surrogacy Boards and State Appropriate Authorities. All these bodies are expected to be constituted within three months of the notification issued by the Centre.

6) No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall undertake commercial surrogacy, issue advertisements surrounding the same, abandon the child born through surrogacy, exploit the surrogate mother, sell human embryo or import human embryo for the purpose of surrogacy.

Anyone found contravening these said rules will serve a prison term of not less than 10 years and with a fine up to Rs 10 lakh.

(Edited by Vinayak Hegde)

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