Row Over Nayanthara & Vignesh's Twins: What Does India's Surrogacy Law Say?

Who is eligible to have a child via surrogacy? Who can be a surrogate? Here's a breakdown of the law.

Tamil Nadu Health Minister Ma Subramanian, speaking to reporters in Chennai on 10 October, said that the state government would probe whether actor Nayanthara and her husband Vignesh Shivan, a director, followed the rules laid under the Assisted Reproductive Technologies (ART) Act and the Surrogacy Act 2021.

While the couple announced the arrival of their twin boys on 9 October, reports suggested that the babies were conceived through surrogacy, drawing the attention of the Tamil Nadu government.

"According to norms, those aged 21 years and under the age of 36 can donate oocytes. The director of health services will be asked to examine if it was done according to norms," the health minister was quoted as saying by Tamil television channels.

So, who is eligible to have a child via surrogacy? And who can be a surrogate? Here's a breakdown of the law.

Is surrogacy legal in India?

The Assisted Reproductive Technologies (ART) Act and the Surrogacy Act, passed in December 2021, define surrogacy as a practice wherein a "woman gives birth to a child for a couple with the intention to hand it over to them after the birth."

• In India, it is permitted for "altruistic purposes" – meaning, the surrogate does not receive monetary compensation

• For couples who suffer from proven infertility or disease

• It is prohibited for commercial purposes, including for sale, prostitution

A gynaecologist shall transfer one embryo into the uterus of a surrogate mother during a treatment cycle. In special circumstances, up to three embryos may be transferred, the rules say.

What are the eligibility criteria?

• 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, with the exemption of a child with a disability, or someone suffering from a life-threatening illness

The couple must get a medical certificate of proven infertility of either partner certified by a District Medical Board.

They are also eligible only if they can afford insurance coverage for 36 months for the surrogate mother, covering any postpartum complications.

Can a single person opt for surrogacy?

The Indian law has left out single persons and persons involved in same-sex and queer relationships while defining eligibility criteria.

Who can be a surrogate?

As per the laws, the following criteria needs to be fulfilled to be a surrogate:

• A surrogate mother has to be a close relative of the couple

• Must be a married woman with a child of her own

• Aged between 25-35 years, she should be a surrogate only once in her life

• Possesses a certificate of medical and psychological fitness for surrogacy

What are the offences under the law?

The National Surrogacy Board and State Surrogacy Board to be constituted by central and state governments are tasked with enforcing standards for surrogacy clinics and investigating breaches.

• Practice of commercial surrogacy, resulting in imprisonment extending to 10 years and a fine up to Rs 10 lakh

• Abandonment, dis-ownership, or exploitation of the child born out of surrogacy, resulting in a jail term of up to 10 years and a fine up to Rs 10 lakh

• Exploitation of the surrogate mother, resulting in a jail term of up to 10 years and a fine up to Rs 10 lakh

• Sale, import, or trade of human embryos or gametes for the purpose of surrogacy, resulting in a jail term of up to 10 years and a fine up to Rs 10 lakh

• Carrying out sex selection also results in a jail term of up to 10 years and a fine up to Rs 10 lakh