Surrogacy act and

ICMR guidelines
By,
Nishkarani.
 Surrogate - meaning
word 'surrogate' has its origin in Latin term
"Surrogatus" which means a substitute, that
is, a person appointed to act in the place of
another.
A surrogate mother is a woman who by
contract agrees to bear a child for someone
else.
Surrogacy means a practice whereby one
woman bears and gives birth to a child for an
intending couple with the intention of handling
over such child to the intending couple after
the birth.
 Surrogate birth

This technique involves artificial insemination of

another woman with the sperms of the male of intending
couple or donor sperms.

After surrogate birth, the baby is handed over to its

biological father and his wife.
 Origin of surrogacy
The first "official" legal surrogacy agreement
was enacted in the mid-1970's in US with the
child who was referred to as Baby M.
During that same time frame, surrogacy made
the national and international news with the
world's first "test tube" baby, Louise Joy Brown.
The world's second and India's first IVF (in
vitro fertilization) baby, Kanupriya alias Durga
was born in Kolkata on October 3, 1978.
Kanupriya alias
Durga
First Indian IVF baby
 Two parties of contract

There are two parties of the contract:

A. The commissioning couple: who makes the request

and

B. The surrogate mother: who agrees to bear child on

the behalf of “the commissioning couple”.
 Types of surrogacy
Medically: 2types:

A. Traditional surrogacy: also called as complete

surrogacy. Here female of the commissioning
couple is unable to bear children ( ovarian, fallopian
tube or uterine pathology). So sperm from the male
of the commissioning couple is used to impregnate
the surrogate mother.
• Impregnation is done via IUI (intrauterine insemination)
or ICI (intracervical insemination), which is performed
at the fertility clinics.
• Thus the couple ‘buys an ovum’ from the surrogate
mother and also hires her uterus.
• The surrogate mother returns the baby to the
“commissioning couple” after delivery.
A. Gestational surrogacy : also called as uterine surrogacy.
• The female of the commissioning couple has a functioning ovary, but
there is uterine pathology. Example: MRKH (Mayer rokitansky kuster
hauser) and unicornuate uterus.
• So she cannot carry on the pregnancy in her own uterus.
• Thus the couple hires the uterus only.
• the baby is conceived in vitro with the sperm and egg of the
commissioning couple and transferred to the uterus of the surrogate
mother who returns the baby to the couple after delivery.
Traditional and gestational surrogacy
 Legally: 2types
Commercial surrogacy: the Surrogate mother agrees to bear child on behalf of
the commissioning couple for the money, so it’s also called as paid surrogacy.

Altruistic surrogacy: Here, the surrogate mother bear child to help the couple
out of love and affection. For example, a woman agreeing to bear child for her
sister or even her daughter. It is the surrogacy with no charges, expenses, fees,
remuneration or monetary incentive of whatever nature, except the medical
expenses and such other prescribed expenses incurred on surrogate mother and
the insurance coverage for the surrogate mother, are given to the surrogate
mother or her dependents or her representative.
 Other classifications
International surrogacy also called as overseas surrogacy:
here, surrogacy arrangement involves an overseas country.
assumes significance when one country recognises
surrogacy, but the other does not.

Same-sex surrogacy: same sex male couple hires surrogate

mother, same-sex female couple hires a sperm donor.
 Case
• In 1999, Barrie and tony drewitt - Barlow became the first
British same sex couple to be named on their children’s birth
certificates. They hired a surrogate mother from California
who gave birth to twin brothers aspen and saffron. In 2003,
they used the same egg donor to have 3rd child again in
2010 had twin boys. They now have 5children- all surrogate
babies. They setup the British surrogacy centre in Essex, in
feb 2011.
 ICMR guidelines
Desirable practices:
• no ART clinic may refuse to offer its services.
• The ART clinic must not be a party to any commercial element.
• A surrogate mother carrying, child biologically unrelated to her
must register as a patient in her own name.
• No ART procedure shall be done without the spouse's consent.
• ART to an HIV-positive woman would be governed by the
implications of the decision of the Supreme Court in the case of
X v. Hospital, 2 (1998) 8 Sec. 269: decision was HIV +ve
persons should not do ART.
• The accepted age for a sperm donor shall be between 21-45 yrs
and for the donor woman between 18-35 yrs.
• Sex selection at any stage after fertilization, or abortion of foetus
of any particular sex should not be permitted, except to avoid the
risk. Abortion is done under medical termination of pregnancy act.
• It will be the responsibility of the ART clinic to obtain sperm from
appropriate banks; neither the clinic nor the couple shall have the
right to know the donor identity and address, but both the clinic
and the couple, however, shall have the right to have the fullest
possible information from the semen bank on the donor such as
height, weight, skin colour, educational qualification, profession,
family background, freedom from any known diseases or carrier
status (such as hepatitis B or AIDS), ethnic origin, and the DNA
fingerprint (if possible), before accepting the donor semen.
The data of every accredited ART clinic must be
accessible to an appropriate authority of the ICMR at the
national level. The true informed consent should be made
on the consent form, witnessed by a person who is in no
way associated with the clinic.
 Sourcing of sperm and oocyte
donors and surrogate mothers
• Semen banks: Either an ART clinic or a law firm or any other
suitable independent Organization may set up a semen bank.
• record of all donors is kept for 10years after which, or if the
bank is wound up during this period, the records shall be
transferred to an ICMR.
• On request for semen by an ART clinic, the bank will
provide the clinic with a list of donors (without the name or
the address but with a code number) giving all relevant
details.
• The bank must be run professionally and must have
facilities for cryopreservation of semen, following
internationally accepted protocols.
• Semen samples cryopreserved for at least six months
before first use must be tested for HIV and hepatitis B
and C.
• All semen banks will require accreditation.
 ICMR guidelines
1. A child born through surrogacy must be adopted by the genetic
(biological) parents unless they can establish through DNA fingerprinting
(of which the records will be maintained in the clinic) that the child is theirs.
2. Surrogacy by assisted conception should normally be considered only for
patients whom it would be physically or medically impossible to carry a
baby to term.
3. Payments to surrogate mothers should cover all genuine expenses
associated with the pregnancy. Documentary evidence of the financial
arrangement for surrogacy must be available. The ART centre should not be
involved in this monetary aspect.
4. Advertisements regarding surrogacy should not be made by the ART
clinic.
5. A surrogate mother should not be over 45 years of age.
6. A relative, a known person, as well as a person unknown to the
couple may act as a surrogate mother for the couple.
7.A prospective surrogate mother must be tested for HIV and
shown to be seronegative for this virus just before embryo
transfer. She must also provide a written certificate that (a) she
has not had a drug intravenously administered into her through a
shared syringe, (b) she has not undergone blood transfusion; and
c). she and her husband (to the best of her/ his knowledge) has
had no extra Marital relationship in the last six months.
8. No woman can undergo surrogacy for more than 3times.
 General considerations
• Minimum age for ART in a woman shall be 20 years. Between 20
and 30 years, two years of cohabitation/marriage without the use of a
contraceptive, excepting in cases where the man is infertile or the
woman cannot physiologicaly conceive. For a woman over 30 years,
one year of cohabitation/marriage without use of contraceptives.
• No new ART clinic may start operating unless it has obtained a
temporary registration to do so. This registration would be confirmed
only if the clinic obtains accreditation (permanent registration) from
the central or State's appropriate accreditation authority within two
years of obtaining the temporary registration. The registration must
be renewed every seven years.
 Draft : 2009
foreign and non-resident Indian commissioning paries must :
• appoint a local guardian who will assume legal responsibility in
caring for the surrogate,
• provide the ART with documentation that they would be able to
take the child born through surrogacy outside the country,
The child born of surrogacy is considered the legitimate child of
the commissioning parties, even in the event of divorce,
child born of surrogacy would have the right to obtain non
identifying information about the surrogacy upon attaining age 18.
 New Indian visa regulations
The new Indian Visa Regulations dated 9 July 2012
issued by the Ministry of Home affairs ,Government
of India, require that only a foreign couple, i.e., a duly
married man and woman whose marriage should have
sustained at least two years will be allowed in india
for commencing surrogacy on medical and not tourist
visas upon fulfilling conditions prescribed therein.
 Baby manji Yamada case
Baby Manji Yamada (2008) 13 SCC 518,dealt with the dilemma of a child abandoned by a
surrogate mother, when the biological parents(requisitioning couple) from a foreign country
(Japan) got separated and the woman did not want the child and the male could not stay in India
due to visa being unavailable to claim lawful custody. The Municipality at Anand, where the child
had been born, had entered the name of the genetic father in the birth certificate. The child had
been moved to a hospital when a habeas corpus petition had been filed by a NGO, Satya bringing
to light the inadequacies of existing law and imploring the Union to enforce stringent laws
relating to surrogacy and quell the money spinning racket that was being perpetuated . The
Supreme Court, while disposing of a petition filed under Article 32 of Constitution by a person
claiming to be the grandmother of the child did not feel spelled to take a pro-active role for where
the legislature had failed but gave permission to the petitioner to take the child to Japan after a
passport was issued, with liberty given to any person to approach the Commission constituted
under Commission For Protection of Child Rights Act, 2005, if any foul play was suspected.
Baby manji yamada
 Surrogacy regulation act, 2021
Commercial surrogacy: not permitted in India.
Altruistic surrogacy: permitted as per surrogacy regulation act 2021.
Intending couple: married (at least 5years with proven infertility )
/Indian/widows/divorcees.
Expenses ( medical and insurance) of surrogate mother should be met for 36months.
Indian origin couples with age criteria for woman- 23 to 50 and man- 26 to 55 and
medical indication for surrogacy.
 Eligibility for being a surrogate mother:
• Close relative .
• Married (atleast one healthy child).
• Age: 25 -35 years.

• For only once in lifetime

Child:
• Legitimate child.
• No sex selection.
• Abandonment of child: legally punishable.
Medicolegal aspects
 Documents necessary for
surrogacy in india
proof of marriage,
certificate of age,
certificate of essentiality for the surrogate,
certificate of medical indication from the District board,
certificate of eligibility for the surrogate from the Board, and
insurance/certificate of the surrogate for psychology and
medical fitness.
 Resources

Anil Agarwal forensic Medicine book.

Jaising Modi textbook of medical jurisprudence and

toxicology.

Surrogacy regulation act 2021 pdf from dhr.gov.in