Surrogacy Regulation Act 2021 has been notified in the Gazette on 25th December 2021 and there are important implications for all who practice surrogacy in India both for patients and clinics and ART Banks
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Surrogacy Regulation Act 2021
1. Dr. Shivani Sachdev Gour
M.D. DNB, M.R.C.O.G. (UK)
SCI IVF Centre
New Delhi and Noida
2.
3. Surrogacy Regulation Act
(SRA) 2021
The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of
Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15,
2019 and passed on August 5 2019 but referred to Rajya Sabha Select
Committee (2016 Bill was referred in 2017 and 2019 bill was referred in
2019)
8th December 2021 Surrogacy Regulation Bill 2021 was passed by the
Rajya Sabha
25th December 2021 Surrogacy Regulation Act 2021 was notified in the
Gazette
4. Surrogacy Regulation Act
(SRA) 2021
Surrogacy Regulation Act 2021 will come into force on
the date of implementation which has not been given
yet
As of now – January 2022 - all treatments are ongoing
as per the current norms
6. At present the Surrogacy Contract between the
parties (as recognized by Supreme Court in baby
Yamada’s case) and the Assisted Reproductive
Technique (ART) Clinics guidelines are the main
guiding force for surrogacy arrangements
9. WHO IS ELIGIBLE FOR SURROGACY UNDER
Surrogacy Regulation Act 2021
Indian Infertile couple:
Legally married Indian man and woman > 21 and > 18 yrs respectively
have a medical indication necessitating Gestational Surrogacy
are of the age of 23 - 50 yrs for the woman; 26 – 55 yrs for the man
Do not have a child except one who is mentally/ physically challenged/
suffers from a life threatening disorder or fatal illness with no
permanent cure
Widowed woman between age of 35 and 45 years
Divorced woman between age of 35 and 45 years
Indian origin couples (PIO/ OCI) with age criteria as above and
medical indication for Surrogacy.
10. WHO IS NOT ELIGIBLE FOR SURROGACY
UNDER Surrogacy Regulation Act 2021
Single/ Widow/ Divorced Men
Single unmarried women
Couple in “Live In” Relationships
LGBTQ intending parents
Foreign couples (non OCI/ PIO)
Intending couple who have a child already either biologically or through
Adoption or Surrogacy except if the child is mentally/ physically
challenged/ suffers from a life threatening disorder or fatal illness with
no permanent cure
11. Surrogacy Regulation Act (SRA) 2021
Who can be a Surrogate Mother?
Ever Married woman
Age 25 to 35 years on day of implantation
Has a child of her own
“Willing woman” (not necessarily relative)
Not to provide own gametes
Only once in lifetime (number of attempts maybe as prescribed)
Certificate of medical and psychological fitness from an RMP
Must possess an Eligibility certificate issued by the AA
Only for altruistic purposes not for commercial purposes
12. Surrogacy Regulation Act (SRA) 2021
Pre Requisites Before Starting The Procedure
Intended Couple should possess Certificate of Essentiality issued by the
AA
Certificate of Medical Indication in favour of either or both of the
Intending Couple or the Intending Woman necessitating Surrogacy from
the Ditrict Medical Board
An Order containing the parentage and custody of the child to be born by
surrogacy passed by Magistrate Court which shall be the Birth Affidavit of
the child
Insurance coverage of such amount and manner as may be prescribed for
the Surrogate Mother – period of 36 months - covering postpartum
complications - from an insurance company or Agent recognized by IRDA
13. Surrogacy Regulation Act (SRA) 2021
Pre Requisites Before Starting The Procedure
Special Consent in Local Language listing all
known complications/ side effects
17. Surrogacy Regulation Act (SRA) 2021 : Financials
What is allowed for the Surrogate mother under
the Altruistic Surrogacy Arrangements?
Medical Expenses
“Such other Prescribed Expenses” incurred on the
surrogate mother
Insurance Coverage
Given to the Surrogate Mother/ her Dependents/ her
Relatives
18. Surrogacy Regulation Act (SRA) 2021 : Financials
What is Prohibited for the Surrogate mother
under the Altruistic Surrogacy Arrangements?
Charges
Fees
Remuneration
Expenses
Monetary Incentives of whatever nature cash or kind
To Surrogate Mother or her dependents or her
representatives
19. Surrogacy Regulation Act (SRA) 2021:
Registration of Clinics
Registration is valid for a period of 3 years
Registration certificate to be displayed in prominent position
20. Surrogacy Regulation Act (SRA) 2021:
What if the Surrogate Mother changes her
mind?
The Surrogate Mother shall have the option to withdraw
her consent for surrogacy before the implantation of the
embryo in her womb
21. Surrogacy Regulation Act (SRA) 2021:
Termination of Pregnancy during Surrogacy
Written consent of the Surrogate Mother
Authorisation of the same by AA
Subject to and in compliance of the MTP Act 1971
No person/ organisation/ clinic/ Lab/ Clinical
Establishment of any kind shall force the surrogate mother
to abort at any stage of pregnancy except in such conditions
as may be prescribed
25. Surrogacy Regulation Act (SRA) 2021 :
How many embryos can be transferred?
The number of oocytes/ embryos that can be
implanted shall be such as prescribed under the rules
26. Surrogacy Regulation Act (SRA) 2021 :
Rights of the Child
Deemed to be the biological child and entitled to all rights and
privileges available to a natural child under any law for time being in
force
Strictly prohibits abandonment of the child in India or outside for any
reason whatsoever including but not limited to any genetic or birth
defect or any condition the same developing subsequently, sex of child,
or conception of more than one baby or the like
28. Surrogacy Regulation Act (SRA) 2021 :
Surrogacy Boards
Authorities involved in Surrogacy Procedure
National ART and Surrogacy Board
State ART and Surrogacy Board
Appropriate Authority AA
District Medical Board
33. Surrogacy Regulation Act (SRA) 2021 :
Offences and Penalties: Surrogate Mother
presumed innocent and compelled into
surrogacy procedure
34. DATA FROM LEADING SURROGACY CLINICS ON
SURROGACY IN THE NEXT SLIDE
35. REASON FOR SURROGACY
Renal Transplant
2%
Multiple Fibroids
4%
Severe
Hypertension
1%
Severe
Diabetes
1%
Poor Ovarian Reserve with
Asherman's Syndrome
1%
MRKH
Syndrome
1%
Grade
3 Endometriosis
7%
TB Endometrium with
Multiple failed IVF Cycles
3%
Incompetent Cervix
3%
Thin or Abnormal
Endometrium
4%
Asherman's Syndrome with
Multiple failed IVF Cycles
4%
Absence of Uterus
8%
Adenomyosis
3%
Multiple Ectopic
Pregnancies
2%
Multiple failed IVF Cycles
12%
Kidney Disorders
1%
Liver Cirrhosis
0%
Lupus
1%
Abnormal Uterus
4%
RIF
3%
Recurrent Pregnancy Loss
1%
Single Father
1%
Hysterectomy
10%
Multiple Miscarriages or
Missed Abortion
12%
Cancer Patients or
Survivors
2%
Heart related problems
1%
Paralytic patients
1%
Miscellaneous
8%
Rheumatoid
Arthritis
0%
36. INSTAR recommends a min compensation of 2.25 lakhs for surrogate
mothers irrespective of state/ city)
Full compensation after 28 weeks irrespective of the outcome of pregnancy
Post delivery care for 6 months free of cost in relation to pregnancy
Post miscarriage care for 3 months free of cost and compensation for next month of
pregnancy and all medical expenses paid in case if miscarriage
Recommendations in case of unfortunate events like ectopic pregnancy/
hysterectomy or rarest case of death; Rs 50,000/ Rs 1 lakh/ Rs 5 lakhs minimum
compensation
Recommendations for Contracts: LOCAL language is a must
Recommendations in case the child is born with defects
Condemns discrimination of girl child and follow the PCPNDT Act strictly
Screening tests for surrogate mothers and IPs : recommendations
LOCAL Guardian (Nominees/ Parent separation guidelines) nomination is a must
RESEARCH done by QUESTIONNAIRE to be presented and published
MORE Research and Publications encouraged
Providing Life Insurance to surrogate mothers
INSTAR GUIDELINES
37.
38.
39.
40. 2005 2014 PROPOSED
Surrogacy BILL
2016
Intending
Couple
23-50 male
26-55 female
Married
life
5 yrs
surrogate 21-45 Married 23-
35 yrs
Altruistic surrogacy
23-35 yrs Close relative –
Not >5
times
Not more
than 1 LB
,not<2yrs
interval
Only once as surrogate with
child of her own
Foreign
couple
allowed
Indian,
OCIs,
PIOs NRIs,
Indian citizen only. Donor
gametes not allowed
41. Surrogacy Regulation Act (SRA) 2021 :
Close Relative replaced by “willing woman” for surrogate mother
Intended couple “Indian origin” instead of Indian citizen :PIO/OCI
permitted?
Single woman also allowed but age group 35 to 45 : at advanced age
donor embryo may be only option
Embryo not genetically related to surrogate mother – means that donor
gametes also likely to be allowed. 2016 Bill allowed genetic gametes
only from Intended parents
Insurance cover mandated 36 months
Clause of harsh punishments persist
Intending couple should not have any biological/ adopted / surrogate
child except mentally physically disabled – ONE CHILD Norm
Birth Affidavit instead of Birth Certificate
Commercial surrogacy is banned – no payments!
Time period for transition and current cases status not specified
42. Surrogacy is legitimate because no Indian law prohibits it.
Hon Supreme Court Judgement to be followed till Bill is
passed
Commercial/ Compensated/ Altruistic surrogacy to be done
for Indian patients only.
43. I do my best because
I’m counting on
you counting on me.
Maya Angelou
44. NEWS UPDATES
Surrogate Woman Entitled To Maternity Leave Benefits, To Distinguish
Between A Surrogate Mother And Natural Mother Would Result In Insult HP
High Court 2021
In Maharashtra - Unable to bear a second child, the petitioner along with her
husband, chose the route of surrogacy. The surrogate mother gave birth to a
baby girl on 5-11-2012. With reference to the expected date of delivery, the
petitioner sought maternity leave to take care of the surrogate child. The same
was denied to her on the ground that the Leave Rules and the policy governing
the Rules did not permit maternity leave for a surrogate child.
The petitioner challenged the said denial by way of the present petition and
won
5 High Courts have now given Maternity leave for Surrogacy
45. Women employees of the central government who have a child through
surrogacy will be entitled to maternity leave, according to an official order of
the personnel ministry. They can get paid maternity leave of 26 weeks (about
180 days).
The ministry has written to all central government departments about a Delhi
High Court order of 2015 on the issue. “All ministries/departments are advised
to give wide publicity of its contents to the concerned officers,” the personnel
ministry said in its latest directive to all the ministries and enclosed a copy of
the court’s order with it.
46. With effect from Feb 2016, in Microsoft India Surrogacy leave for mothers has been
introduced at 26 weeks.
Amazon – 26 weeks – Whether you are a birthing mother or an adoptive one, Amazon
sees no difference. ... paid leave of absence for up to 26 weeks surrounding the birth
or adoption of a child.
Google 22-24 weeks of paid leave for mothers who give birth and 12 weeks for non-
birthing parents.
Diageo India has announced a 26-week paid leave to white-collar employees of all
genders and sexual orientations entering parenthood through biological conception,
surrogacy or adoption to improve gender equality, diversity and inclusion at the
workplace.