Surrogacy Rules Notified: Only 3 Attempts Legal, Insurance for Surrogate Mother

The Surrogacy (Regulation) Act, 2021 came into force on 25 January this year.

(Photo: The Quint/Kamran Akhter)

The Union Health Ministry, on Wednesday, 22 June, notified a set of rules with regard to surrogacy, including insurance coverage for surrogate mother and the number of times they are legally allowed to undergo the process. The Surrogacy (Regulation) Act, 2021 came into force on 25 January this year.

What Is the Big Point?

According to the rules, the number of attempts of any surrogacy procedure on the surrogate mother should not be more than three times. The surrogate mother may be allowed for abortion during the process of surrogacy in accordance with the Medical Termination of Pregnancy Act, 1971.

The rules issued on Monday also mentioned the requirement and qualification for persons employed at a registered surrogacy clinic besides the form and manner for registration and fee for a surrogacy clinic.

What Couples Opting for Surrogacy Must Know

The intending couple/woman also have to give an affidavit in court as a guarantee of compensation for medical expenses, health issues, specified loss, damage, illness or death of surrogate mother and such other prescribed expenses incurred on such surrogate mother during the process of surrogacy.

Couples who intend to take the surrogacy route to become parents will have to buy a general health insurance coverage in favour of a surrogate mother for a period of 36 months, according to the Surrogacy (Regulation) Rules issued.

"The intending woman or couple shall purchase a general health insurance coverage in favour of surrogate mother for a period of 36 months from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the provisions of the Insurance Regulatory and Development Authority Act, for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and post-partum delivery complications," the rules stated.

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, the rules said.

But Who Can Opt for Surrogacy?

According to the rules, a woman may opt for surrogacy if she has no uterus or missing uterus or abnormal uterus or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.

One can also opt for surrogacy in cases of multiple pregnancy losses resulting from an unexplained medical reason, or any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening, among others.

• Heterosexual couple with a man between the ages of 26 and 55 years, and a woman between the ages of 25 and 50 years

• Married for a period of at least five years

• Should have no other biological, adopted or surrogate children (unless the child is mentally/physically challenged or has a life-threatening disorder)

The Controversy

The legislation has received the ire from various sections of the civil society, criticising it for being a 'needs-based' rather than a 'right-based' legislation. Even government officials have censured the law for restraining women's autonomy over their bodies.

Opposing the prohibition of commercial surrogacy, Independent Rajya Sabha MP from Assam, Ajit Kumar Bhuyan, had stated in the Rajya Sabha:

"The ban on commercial surrogacy is another example of how out of touch lawmakers are with ground realities. You say this is an attempt to curb exploitation, but in fact you are curtailing the rights of woman surrogates by removing the commercial component. Is she meant to provide these services free of cost?"

Moreover, the bill has also been accused of being discriminatory towards members of the LGBTQ+ community and unmarried couples, with BJD’s Dr Amar Patnaik and Bhuyan elucidating that the legislation contravenes the 'right to reproductive choices' under Article 21 by excluding some sections of the society.

"What happens to unmarried people and the LGBTQ community? Many countries allow surrogacy. The Supreme Court has said that the right to reproduce is a fundamental right in the 2016 judgement in Devika Biswas vs Union of India case – restricting the bills to heterosexual couples is in contravention to this," The Indian Express quoted the MPs as saying.

(With inputs from PTI.)