Chapter At A Glance

The Surrogacy (Regulation) Bill, 2016: Comparison of the 2016 Bill with the 2018 Amendments

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016.[1]  The Bill prohibits commercial surrogacy, allows altruistic surrogacy and specifies criteria for the intending couple and surrogate mother.  Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.  The Standing Committee on Health and Family Welfare (Chairperson: Prof. Ram Gopal Yadav) examined the Bill and submitted its report on August 10, 2017.[2]

Certain amendments to the 2016 Bill were circulated in Lok Sabha on December 18, 2018.  We compare provisions of the 2016 Bill with the proposed 2018 amendments.

Table 1: Comparison of the provisions of the 2016 Bill with the 2018 proposed amendments

The Surrogacy (Regulation) Bill, 2016

Amendments proposed to the Bill (2018)

Eligibility conditions for surrogate mother

·   To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to: (i) be a close relative of the intending couple; (ii) be an ever married woman having a child of her own; (iii) be 25 to 35 years old; (iv) not have been a surrogate mother earlier; and (iv) have a certificate of medical and psychological fitness.

·   The amendments add that the surrogate mother cannot provide her own gametes for surrogacy.

Informed consent of surrogate mother

·   The Bill states that no person can conduct surrogacy procedures, unless he has: (i) explained all side effects to the surrogate mother, and (ii) obtained written informed consent of the surrogate mother to undergo surrogacy procedures.

·   The amendments add that the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Sex selection

·   The Bill regulates the functioning of surrogacy clinics and medical practitioners and prohibits various activities including: (i) undertaking commercial surrogacy, (ii) employing persons without requisite qualifications, and (iii) storing a human embryo, among others.

·   The amendments add that any form of sex selection for surrogacy will also be prohibited. 

Insurance coverage for surrogate mother

·   The Bill requires the intending couple to have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority to undertake surrogacy. 

·   One of the conditions to receive a certificate of essentiality is to provide insurance coverage for the surrogate mother. 

·   The amendments state that the insurance coverage will have to be provided for a period of 16 months covering postpartum delivery complications.

Time period for granting authorisation

·   Under the Bill, in order to initiate a surrogacy procedure, the surrogate mother and the intending couple are required to obtain certificates of eligibility and essentiality from the relevant appropriate authorities.   

·    Further, to abort the surrogate child during the period of surrogacy, the appropriate authority has to grant authorisation along with the written consent of the surrogate mother.

·   The amendments state that the appropriate authority should consider and grant or reject these applications within a period of 90 days.

Offences and penalties

·   The Bill states that anyone who contravenes any provisions of the Bill will be punishable with imprisonment for a minimum term of five years, and a fine of up to 10 lakh rupees.

·   If an intending couple or any person initiates commercial surrogacy, they will be punishable with imprisonment for a minimum term of five years, and a fine of up to 10 lakh rupees.

·   Further, if anyone contravenes any provision of the Bill for which no specific punishment is provided will be punishable with imprisonment for a minimum term of three years, and a fine of up to five lakh rupees.

·   The Bill states that any offenses related to commercial surrogacy, exploitation of surrogates, and importing of the human embryo will be punishable with a with imprisonment for a minimum term of ten years, and a fine of up to 10 lakh rupees.

·   The amendments replace imprisonment for a minimum term of five years with a maximum term of five years.

·   The amendments replace imprisonment for a minimum term of five years with a maximum term of five years.

·   The amendments replace imprisonment for a minimum term of three years with a maximum term of three years.

·   The amendments replace imprisonment for a minimum term of ten years with a maximum term of ten years.

Sources: The Surrogacy (Regulation) Bill, 2016; Notice of Amendments in Lok Sabha, December 18, 2018; PRS.

 

[1]. The Surrogacy (Regulation) Bill, 2016, http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/257_LS_2016_Eng.pdf.

[2] Report No. 102, The Surrogacy (Regulation) Bill, 2016, Standing Committee on Health and Family Welfare, August 10, 2017, http://164.100.47.5/committee_web/ReportFile/14/100/102_2018_6_15.pdf.

 

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