The Surrogacy (Regulation) Act, 2021

S.1 Short title, extent and commencement.

(1) This Act may be called the Surrogacy (Regulation) Act, 2021.

(2) It shall come into force on such date¹ as the Central Government may, by notification in the Official Gazette, appoint.

S.2 Definitions.

(1) In this Act, unless the context otherwise requires,--

(a) "abandoned child" means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry;

(b) "altruistic surrogacy" means the surrogacy in which 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;

S.3 Prohibition and regulation of surrogacy clinics.

On and from the date of commencement of this Act, —

(i) no surrogacy clinic, unless registered under this Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures;

(ii) no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form;

(iii) no surrogacy clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment, who does not possess such qualifications as may be prescribed;

S.4 Regulation of surrogacy and surrogacy procedures.

On and from the date of commencement of this Act,---

(i) no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clause (iii);

(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:

(a) when an intending couple has a medical indication necessitating gestational surrogacy:

S.5 Prohibition of conducting surrogacy.

No person including a relative or husband of a surrogate mother or intending couple or intending woman shall seek or encourage to conduct any surrogacy or surrogacy procedures on her except for the purpose specified in clause (ii) of section 4

S.6 Written informed consent of surrogate mother.

(1) No person shall seek or conduct surrogacy procedures unless he has—

(i) explained all known side effects and after effects of such procedures to the surrogate mother concerned; and

(ii) obtained in the prescribed form, the written informed consent of the surrogate mother to undergo such procedures in the language she understands.

(2) Notwithstanding anything contained in sub-section (1), the surrogate mother shall have an option to withdraw her consent for surrogacy before the implantation of human embryo in her womb.

S.7 Prohibition to abandon child born through surrogacy.

The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like.

S.8 Rights of surrogate child.

A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force.

S.9 Number of oocytes or human embryos to be implanted.

The number of oocytes or human embryos to be implanted in the uterus of the surrogate mother for the purpose of surrogacy, shall be such as may be prescribed.

S.10 Prohibition of abortion.

No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall force the surrogate mother to abort at any stage of surrogacy except in such conditions as may be prescribed.

S.11 Registration of surrogacy clinics.

(1) No person shall establish any surrogacy clinic for undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly registered under this Act.

(2) Every application for registration under sub-section (1) shall be made to the appropriate authority in such form, manner and shall be accompanied by such fees as may be prescribed.

(3) Every surrogacy clinic which is conducting surrogacy or surrogacy procedures, partly or exclusively, referred to in clause (ii) of section 4 shall, within a period of sixty days from the date of appointment of appropriate authority, apply for registration:

Provided that such clinic shall cease to conduct any such counselling or procedures on the expiry of six months from the date of commencement of this Act

S.12 Certificate of registration.

(1) The appropriate authority shall after holding an enquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules and regulations made thereunder, grant a certificate of registration to the surrogacy clinic, within a period of ninety days from the date of application received by it, in such form, on payment of such fees and in such manner, as may be prescribed.

(2) Where, after the inquiry and after giving an opportunity of being heard to the applicant, the appropriate authority is satisfied that the applicant has not complied with the requirements of this Act or the rules or regulations made thereunder, it shall, for reasons to be recorded in writing, reject the application for registration.

(3) Every certificate of registration shall be valid for a period of three

S.13 Cancellation or suspension of registration .

(1) The appropriate authority may, suo motu or on receipt of a complaint, issue a notice to the surrogacy clinic to show cause as to why its registration should not be suspended or cancelled for the reasons mentioned in the notice.

(2) If after giving a reasonable opportunity of being heard to the surrogacy clinic, the appropriate authority is satisfied that there has been a breach of the provisions of the Act or the rules or regulations made thereunder, it may, without prejudice to any criminal action that it may take against such clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.

(3) Notwithstanding anything contained in sub-sections (1) and (2), if the appropriate authority is of the opinion that it is necessary or expedient to do so in the public interest,

S.14 Appeal.

The surrogacy clinic or the intending couple or the intending woman may, within a period of thirty days from the date of receipt of the communication relating to order of rejection of application, suspension or cancellation of registration passed by the appropriate authority under section 13 and communication relating to rejection of the certificates under section 4, prefer an appeal against such order to—

(a) the State Government, where the appeal is against the order of the appropriate authority of a State;

(b) the Central Government, where the appeal is against the order of the appropriate authority of a Union territory,

in such manner as may be prescribed.

S.15 Establishment of National Assisted Reproductive Technology and Surrogacy Registry.

There shall be established a Registry to be called the National Assisted Reproductive Technology and Surrogacy Registry for the purposes of registration of surrogacy clinics under this Act.

S.16 Application of provisions of Assisted Reproductive Technology Act with respect to National Registry.

The National Assisted Reproductive Technology and Surrogacy Registry referred to in section 15 and to be established under section 9 of the Assisted Reproductive Technology Act shall be the National Registry for the purposes of this Act and the functions to be discharged by the said Registry under the Assisted Reproductive Technology Act shall, mutatis mutandis, apply.

S.17 Constitution of National Assisted Reproductive Technology and Surrogacy Board.

(1) The Central Government shall, by notification, constitute a Board to be known as the National Assisted Reproductive Technology and Surrogacy Board to exercise the powers and perform the functions conferred on the Board under this Act.

(2) The Board shall consist of---

(a) the Minister in-charge of the Ministry of Health and Family Welfare, the Chairperson, ex officio;

(b) the Secretary to the Government of India in-charge of the Department dealing with the surrogacy matter, Vice-Chairperson, ex officio;

S.18 Term of office of Members.

(1) The term of office of a Member, other than an ex officio Member, shall be---

(a) in case of election under clause (c) of sub-section (2) of section 17, three years:

Provided that the term of such Member shall come to an end as soon as the Member becomes a Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the House of the People, or the Deputy Chairman of the Council of States or ceases to be a Member of the House from which she was elected; and

(b) in case of appointment under clause (f) of sub-section (2) of section 17, three years:

(1) The Board shall meet at such places and times and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be determined by the regulations:

Provided that the Board shall meet at least once in six months.

(2) The Chairperson shall preside at the meeting of the Board and if for any reason the Chairperson is unable to attend the meeting of the Board, the Vice-Chairperson shall preside at the meetings of the Board.

(3) All questions which come up before any meeting of the Board shall be decided by a majority of the votes of the members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the Vice-Chairperson shall have a second or casting v

S.20 Vacancies, etc., not to invalidate proceedings of Board.

No act or proceeding of the Board shall be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the Board; or

(b) any defect in the appointment of a person acting as a Member of the Board; or

S.21 Disqualifications for appointment as Member.

S.22 Temporary association of persons with Board for particular purposes.

(1) The Board may associate with itself, in such manner and for such purposes as may be determined by the regulations, any person whose assistance or advice it may desire in carrying out any of the provisions of this Act.

(2) A person associated with the Board under sub-section (1) shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Board and shall not be a Member for any other purpose.

S.23 Authentication of orders and other instruments of Board.

All orders and decisions of the Board shall be authenticated by the signature of the Chairperson and all other instruments issued by the Board shall be authenticated by the signature of the Member-Secretary of the Board.

S.24 Eligibility of Member for re-appointment.

Subject to other terms and conditions of service as may be prescribed, any person ceasing to be a Member shall be eligible for re-appointment as such Member:

Provided that no Member other than an ex officio Member shall be appointed for more than two consecutive terms.

S.25 Functions of Board.

The Board shall discharge the following functions, namely: —

(a) to advise the Central Government on policy matters relating to surrogacy;

(b) to review and monitor the implementation of the Act, and the rules and regulations made thereunder and recommend to the Central Government, changes therein;

(d) to set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics;

Each State and Union territory having Legislature shall constitute a Board to be known as the State Assisted Reproductive Technology and Surrogacy Board or the Union territory Assisted Reproductive Technology and Surrogacy Board, as the case may be, which shall discharge the following functions, namely:—

(i) to review the activities of the appropriate authorities functioning in the State or Union territory and recommend appropriate action against them;

(ii) to monitor the implementation of the provisions of the Act, and the rules and regulations made thereunder and make suitable recommendations relating thereto, to the Board;

(iii) to send such consolid

S.27 Composition of State Board.

The State Board shall consist of.---

(a) the Minister in-charge of Health and Family Welfare in the State, Chairperson, ex officio;

(b) the Secretary in-charge of the Department of Health and Family Welfare, Vice-Chairperson, ex officio;

(c) Secretaries or Commissioners in-charge of the Departments of Women and Child Development, Social Welfare, Law and Justice and Home Affairs or their nominees, members, ex officio;

(d) Director-General of Health and Family Welfare of the State Government, member, ex officio;

S.28 Term of office of members.

(1) The term of office of a member, other than an ex officio member, shall be---.

(a) in case of nomination under clause (e) of section 27, three years:

Provided that the term of such member shall come to an end as soon as the member becomes a Minister or Minister of State or Deputy Minister, or the Speaker or the Deputy Speaker of the Legislative Assembly, or the Deputy Chairman of the Legislative Council or ceases to be a member of the House from which she was elected; and

(b) in case of appointment under clause (f) of section 27, three years:

Provid

S.29 Meetings of State Board.

(1) The State Board shall meet at such places and times and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at its meetings) as may be specified by the regulations:

Provided that the State Board shall meet at least once in four months.

(2) The Chairperson shall preside at the meetings of the Board and if for any reason the Chairman is unable to attend the meeting of the State Board, the Vice-Chairperson shall preside at the meetings of the State Board.

(3) All questions which come up before any meeting of the State Board shall be decided by a majority of the votes of the members present and voting, and in the event of an equality of votes, the Chairperson, or in his absence, the Vice-Chairperson shal

S.30 Vacancies, etc., not to invalidate proceedings of State Board.

No act or proceeding of the State Board shall be invalid merely by reason of—

(a) any vacancy in, or any defect in the constitution of, the State Board; or

(b) any defect in the appointment of a person acting as a member of the State Board; or

S.31 Disqualifications for appointment as member.

(1) A person shall be disqualified for being appointed and continued as a member if, he

(a) has been adjudged as an insolvent; or

(b) has been convicted of an offence, which in the opinion of the State Government, involves moral turpitude; or

(d) has acquired such financial or other interest, as is likely to affect prejudicially his functions as a member; or

(e) has so abused his position,

S.32 Temporary association of persons with State Board for particular purposes.

(1) The State Board may associate with itself, in such manner and for such purposes as may be determined by the regulations, any person whose assistance or advice it may desire in carrying out any of the provisions of this Act.

(2) A person associated with it by the State Board under sub-section (1) shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the State Board and shall not be a member for any other purpose.

S.33 Authentication of orders and other instruments of State Board.

All orders and decisions of the State Board shall be authenticated by the signature of the Chairperson and all other instruments issued by the State Board shall be authenticated by the signature of the Member-Secretary of the State Board.

S.34 Eligibility of member for re-appointment.

Subject to the other terms and conditions of service as may be prescribed, any person ceasing to be a member shall be eligible for re-appointment as such member:

Provided that no member other than an ex officio member shall be appointed for more than two consecutive terms.

S.35 Appointment of appropriate authority.

(1) The Central Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for each of the Union territories for the purposes of this Act and the Assisted Reproductive Technology Act.

(2) The State Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for the whole or any part of the State for the purposes of this Act and the Assisted Reproductive Technology Act.

(3) The appropriate authority, under sub-section (1) or sub-section (2), shall,---

(a) when appointed for the whole of the State or the Union territory, consist of---

S.36 Functions of appropriate authority.

The appropriate authority shall discharge the following functions, namely:---

(a) to grant, suspend or cancel registration of a surrogacy clinic;

(b) to enforce the standards to be fulfilled by the surrogacy clinics;

(c) to investigate complaints of breach of the provisions of this Act, rules and regulations made thereunder and take legal action as per provision of this Act;

(d) to take appropriate legal action against the use of surrogacy by any person at any place other than prescribed, suo motu or brought to its notice, and also to initiate independent inve

S.37 Powers of appropriate authorities.

(1) The appropriate authority shall exercise the powers in respect of the following matters, namely:—

(a) summoning of any person who is in possession of any information relating to violation of the provisions of this Act, and rules and regulations made thereunder;

(b) production of any document or material object relating to clause (a);

(c) search any place suspected to be violating the provisions of this Act, and the rules and regulations made thereunder; and

(d) such other powers as may be prescribed.

S.38 Prohibition of commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy.

(1) No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall.—

(a) undertake commercial surrogacy, provide commercial surrogacy or its related component procedures or services in any form or run a racket or an organised group to empanel or select surrogate mothers or use individual brokers or intermediaries to arrange for surrogate mothers and for surrogacy procedures, at such clinics, laboratories or at any other place;

(b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated, any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;

(1) Any registered medical practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act (other than the provisions referred to in section 38) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees.

(2) In case of subsequent or continuation of the offence referred to in sub-section (1), the name of the registered medical practitioner shall be reported by the appropriate authority to the State Medical Council concerned for taking necessary action including suspension of registration f

S.40 Punishment for not following altruistic surrogacy.

Any intending couple or intending woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical practitioner, gynaecologist, paediatrician, embryologist or any other person for not following the altruistic surrogacy or for conducting surrogacy procedures for commercial purposes shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment which may extend to ten years and with fine which may extend to ten lakh rupees

S.41 Penalty for contravention of provisions of Act or rules for which no specific punishment is provided.

Whoever contravenes any of the provisions of this Act, rules or regulations made thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees and in the case of continuing contravention with an additional fine which may extend to ten thousand rupees for every day during which such contravention continues after conviction for the first such contravention.

S.42 Presumption in the case of surrogacy.

Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose other than those specified in clause (ii) of section 4 and such person shall be liable for abetment of such offence under section 40 and shall be punishable for the offence specified under that section.

S.43 Offence to be cognizable, non-baliable and non-compoundable.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable, non-bailable and non-compoundable.

S.44 Cognizance of offences.

(1) No court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by--

(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the Central Government or the State Government, as the case may be, or the appropriate authority; or

(b) a person including a social organisation who has given notice of not less that fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court.

(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

S.45 Certain provisions of Code of Criminal Procedure, 1973 not to apply.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said Code relating to plea bargaining shall not apply to the offences under this Act.

S.46 Maintenance of records.

(1) 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.

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

S.47 Power to search and seize records, etc.

(1) If the appropriate authority has reason to believe that an offence under this Act has been or is being committed at any surrogacy clinic or any other place, such authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officers considers necessary, such surrogacy clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search and seizure shall apply, as far as may be, to all action taken by the appropriate authority

S.48 Protection of action taken in good faith.

No suit, prosecution or other legal proceeding shall lie against the Central Government or the State Government or the appropriate authority or any officer authorised by the Central Government or the State Government or by the appropriate authority for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act.

S.49 Application of other laws not barred.

The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.

S.50 Power to make rules.

(1) The Central Government may, by notification and subject to the condition of pre-publication, make rules for carrying out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--

(a) the prescribed expenses under clauses (b), (f) and (q) of sub-section (1) of section 2;

(b) the minimum qualifications for persons employed at a registered surrogacy clinic under clause (iii) of section 3;

S.51 Power to make regulations.

The Board may, with the prior approval of the Central Government, by notification, make regulations not inconsistent with the provisions of this Act and the rules made thereunder to provide for.—

(a) the fulfilment of any other condition under which eligibility certificate to be issued by the appropriate authority under sub-clause (d) of clause (v) of section 4;

(b) the time and place of the meetings of the Board and the procedure to be followed for the transaction of business at such meetings and the number of Members which shall form the quorum under sub-section (1) of section 19;

S.52 Rules and regulations to be laid before Parliament.

Every rule made by the Central Government and every regulation made by the Board under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation or notification.

S.53 Transitional provision.

Subject to the provisions of this Act, there shall be provided a gestation period of ten months from the date of coming into force of this Act to existing surrogate mothers' to protect their well being.

S.54 Power to remove difficulties.

(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of the said Act as appear to it to be necessary or expedient for removing the difficulty:

Provided that no order shall be made under this section after the expiry of a period of two years from the date of commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.