Surrogacy in Assisted Reproductive Technology

19Jan, 2024

Surrogacy in India - Procedural aspects

Medical indications necessitating gestational surrogacy

A woman may opt for surrogacy if;

  1. She has no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small uni-cornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.
  2. Intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts. (Recurrent implantation failure).
  3. Multiple pregnancy losses resulting from an unexplained medical reason. unexplained graft rejection due to exaggerated immune response.
  4. Any illness that makes it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening.

If the appropriate authority is of opinion that the eligibility condition for surrogacy other than those mentioned in the Act, the same may be sent to the National Board for consideration and approval before issuing the eligibility certificate.

Intending Couples or Women with Indian Origin only, can avail Surrogacy. All Surrogacy must be Altruistic in nature. No Commercial Surrogacy in any form can be done.

Every Surrogate must be covered by 3 years of General Health Insurance of ‘sufficient’ amount, which to be purchased by either Intending Couple or women or Surrogacy Clinic.

The intending couple/woman shall sign an affidavit to be sworn before a Metropolitan Magistrate or a Judicial Magistrate of First Class or an Executive Magistrate or a Notary Public giving guarantee as per the clause (q) of sub-section (1) of section 2 of the Surrogacy (Regulation) Act, 2021 (47 of 2021).

Use of Donor Gametes in Surrogacy:

As per New Surrogacy (Regulation) Amendment Rules, 2023, New Delhi, Gazette published on 14th March, 2023 Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed.

Single woman (widow/divorcee) undergoing Surrogacy must use self-eggs and donor sperms to avail surrogacy procedure.

Number of attempts of surrogacy procedure:

The number of attempts of any surrogacy procedure on the surrogate mother shall not be more than three times.

Number of embryos to be implanted in the uterus of the surrogate mother

The gynaecologist shall transfer one embryo in the uterus of a surrogate mother during a treatment cycle: Provided that only in special circumstances up to three embryos may be transferred.

Conditions under which the surrogate mother may be allowed for abortion

The surrogate mother may be allowed for abortion during the process of surrogacy in accordance with the Medical Termination of Pregnancy Act, 1971 (34 of 1971). The intending couples & intending woman must first apply to cmoh office of their respective district for issue of certificate of medical indication (from district medical board)

An order concerning the parentage and custody of the child to be born through surrogacy, has to be passed by a court of the Magistrate of the first class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be the birth affidavit after the surrogate child is born (section 4(iii) (a) (ll)Surrogacy Regulation Act, 2021).

An affidavit of insurance coverage of such amount and in such manner as may be prescribed in favor of the surrogate mother for a period of thirty six months covering postpartum delivery complications from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority (section 4(iii) (a) (iii) Surrogacy Regulation Act, 2021)

They must appear before APPROPRIATE AUTHORITY AT STATE LEVEL with above A,B and C for issue of:

Certificate of essentiality (from state appropriate authority) (as per chapter ill regulation of surrogacy and surrogacy procedures section 4 (iii) (a):

They/she must carry the following documents:

  1. Certificate of Medical Indication
  2. Order Concerning The Parentage And Custody Of The Child
  3. Affidavit on insurance coverage

Certificate of eligibility (from saa) (as per chapter ill regulation of surrogacy and surrogacy procedures section 4 (iii) (b):

For issue of ‘Certificate of Eligibility’ the following criteria is to be fulfilled:

“the intending couple is married and between the age of 23 to 50 years in the case of female and between 26 to 55 in the case of male on the day of certification”.

For proof of the above they/she must bring the following documents:

  1. Adhar
  2. Proof of marriage/ Marriage Certificate (If applicable)
  3. Proof of age/ Birth certificate/10thcertificate/ or any equivalent
  4. Proof that the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier.
  5. After getting all these Certificates, Intending Couple can Apply for

Certificate of Recommendation (FROM NATIONAL BOARD) in FORM 1 of Surrogacy (Regulation) Rules, 2022.

The surrogate mother must apply to state appropriate authority (saa) for eligibility certificate with following documents:

  1. Adhar
  2. Proof of marriage/ Marriage Certificate (If applicable)
  3. Proof of age/ Birth certificate/10th certificate/ or any equivalent
  4. Proof of at least one living child
  5. Affidavit that she has not been a surrogate mother before

Certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner

Consent certificate as per FORM 2 of as per Surrogacy (Regulation) Rules, 2022

The surrogacy clinic shall maintain all records, charts, forms, reports, consent letters, agreements and all the documents under this Act and they shall be preserved for a period of twenty-five years or such period as may be prescribed.

Provided that, if any criminal or other proceedings are instituted against any surrogacy clinic, the records and all other documents of such clinic shall be preserved till the final disposal of such proceedings.

All such records shall, at all reasonable times, be made available for inspection to the appropriate authority or to any other person authorized by the appropriate authority in this behalf.

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