Surrogacy Regulation Act
Surrogacy Regulation Act
The
Surrogacy (Regulation) Act, 20211
(Surrogacy (Regulation) Act, 2021)
[Act 47 of 2021 as amended by Noti. No. S.O. 2204(E), dated 12-5-2022]
[25th December, 2021]
CONTENTS
CHAPTER I
PRELIMINARY
2. Definitions
CHAPTER II
CHAPTER III
CHAPTER IV
14. Appeal
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 2 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
CHAPTER V
32. Temporary association of persons with State Board for particular purposes
CHAPTER VI
APPROPRIATE AUTHORITY
CHAPTER VII
41. Penalty for contravention of provisions of Act or rules for which no specific
punishment is provided
CHAPTER VIII
MISCELLANEOUS
———
(o) “gynaecologist” shall have the same meaning as assigned to it in the Pre-
conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 (57 of 1994);
(p) “implantation” means the attachment and subsequent penetration by the
zona-free blastocyst, which starts five to seven days following fertilisation;
(q) “insurance” means an arrangement by which a company, individual or
intending couple undertake to provide 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;
(r) “intending couple” means a couple who have a medical indication
necessitating gestational surrogacy and who intend to become parents
through surrogacy;
(s) “intending woman” means an Indian woman who is a widow or divorcee
between the age of 35 to 45 years and who intends to avail the surrogacy;
(t) “Member” means a Member of the National Assisted Reproductive Technology
and Surrogacy Board or a State Assisted Reproductive Technology and
Surrogacy Board, as the case may be;
(u) “notification” means a notification published in the Official Gazette;
(v) “oocyte” means naturally ovulating oocyte in the female genetic tract;
(w) “Paediatrician” means a person who possesses a post-graduate qualification
in paediatrics as recognised under the Indian Medical Council Act, 1956 (102
of 1956);
(x) “prescribed” means prescribed by rules made under this Act;
(y) “registered medical practitioner” means a medical practitioner who possesses
any recognised medical qualification as defined in clause (h) of Section 2 of
the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been
entered in a State Medical Register;
(z) “regulation” means regulations made by the Board under this Act;
(za) “sex selection” shall have the same meaning as assigned to it in clause (o)
of Section 2 of the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (57 of 1994);
(zb) “State Board” means the State Assisted Reproductive Technology and
Surrogacy Board constituted under Section 26;
(zc) “State Government” in relation to Union territory with Legislature, means the
Administrator of the Union territory appointed by the President under Article
239 of the Constitution;
(zd) “surrogacy” means a practice whereby one woman bears and gives birth to a
child for an intending couple with the intention of handing over such child to
the intending couple after the birth;
(ze) “surrogacy clinic” means surrogacy clinic, centre or laboratory, conducting
assisted reproductive technology services, invitro fertilisation services, genetic
counselling centre, genetic laboratory, Assisted Reproductive Technology
Banks conducting surrogacy procedure or any clinical establishment, by
whatsoever name called, conducting surrogacy procedures in any form;
(zf) “surrogacy procedures” means all gynaecological, obstetrical or medical
procedures, techniques, tests, practices or services involving handling of
human gametes and human embryo in surrogacy;
(zg) “surrogate mother” means a woman who agrees to bear a child (who is
genetically related to the intending couple or intending woman) through
surrogacy from the implantation of embryo in her womb and fulfils the
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 6 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
shall have an option to withdraw her consent for surrogacy before the implantation of
human embryo in her womb.
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.
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.
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.
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.
Chapter IV
REGISTRATION OF SURROGACY CLINICS
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,
unless such clinic has applied for registration and is so registered separately or till
such application is disposed of, whichever is earlier.
(4) No surrogacy clinic shall be registered under this Act, unless the appropriate
authority is satisfied that such clinic is in a position to provide such facilities and
maintain such equipment and standards including specialised manpower, physical
infrastructure and diagnostic facilities as may be prescribed.
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 years and
shall be renewed in such manner and on payment of such fees as may be prescribed.
(4) The certificate of registration shall be displayed by the surrogacy clinic at a
conspicuous place.
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 10 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(e) the Director General of Health Services of the Central Government, Member,
ex officio;
(f) ten expert Members to be appointed by the Central Government in such
manner as may be prescribed and two each from amongst—
(i) eminent medical geneticists or embryologists;
(ii) eminent gynaecologists and obstetricians;
(iii) eminent social scientists;
(iv) representatives of women welfare organisations; and
(v) representatives from civil society working on women's health and child
issues,
possessing such qualifications and experience as may be prescribed;
(g) four Chairpersons of the State Boards to be nominated by the Central
Government by rotation to represent the States and the Union territories, two
in the alphabetical order and two in the reverse alphabetical order, Member,
ex officio; and
(h) an officer, not below the rank of a Joint Secretary to the Central Government,
in-charge of Surrogacy Division in the Ministry of Health and Family Welfare,
who shall be the Member-Secretary, ex officio.
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 nomination under clause (c) of sub-section (2) of Section 14, 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:
Provided that the person to be appointed as Member under this clause shall
be of such age as may be prescribed.
(2) Any vacancy occurring in the office whether by reason of his death, resignation
or inability to discharge his functions owing to illness or other incapacity, shall be filled
by the Central Government by making a fresh appointment within a period of one
month from the date on which such vacancy occurs and the Member so appointed shall
hold office for the remainder of the term of office of the person in whose place he is so
appointed.
(3) The Vice-Chairperson shall perform such functions as may be assigned to him
by the Chairperson from time to time.
19. Meetings of Board.—(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
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 12 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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;
(c) to lay down the code of conduct to be observed by persons working at
surrogacy clinics;
(d) to set the minimum standards of physical infrastructure, laboratory and
diagnostic equipment and expert manpower to be employed by the surrogacy
clinics;
(e) to oversee the performance of various bodies constituted under the Act and
take appropriate steps to ensure their effective performance;
(f) to supervise the functioning of State Assisted Reproductive Technology and
Surrogacy Boards; and
(g) such other functions as may be prescribed.
26. Constitution of State Assisted Reproductive Technology and Surrogacy Board.—
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 consolidated reports as may be prescribed, in respect of the
various activities undertaken in the State under the Act, to the Board and the
Central Government; and
(iv) such other functions as may be prescribed.
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;
(e) three women members of the State Legislative Assembly or Union territory
Legislative Council, members, ex officio;
(f) ten expert members to be appointed by the State Government in such
manner as may be prescribed, two each from amongst—
(i) eminent medical geneticists or embryologists;
(ii) eminent gynaecologists and obstetricians;
(iii) eminent social scientists;
(iv) representatives of women welfare organisations; and
(v) representatives from civil society working on women's health and child
issues,
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 14 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(iv) an officer of Law Department of the State or the Union territory concerned
not below the rank of a Deputy Secretary—member; and
(v) an eminent registered medical practitioner—member:
Provided that any vacancy occurring therein shall be filled within one
month of the occurrence of such vacancy;
(b) when appointed for any part of the State or the Union territory, be officers of
such other rank as the State Government or the Central Government, as the
case may be, may deem fit.
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 investigations in such matter;
(e) to supervise the implementation of the provisions of this Act and rules and
regulations made thereunder;
(f) to recommend to the Board and State Boards about the modifications
required in the rules and regulations in accordance with changes in technology
or social conditions;
(g) to take action after investigation of complaints received by it against the
surrogacy clinics; and
(h) to consider and grant or reject any application under clause (vi) of Section 3
and sub-clauses (a) to (c) of clause (iii) of Section 4 within a period of ninety
days.
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.
(2) The appropriate authority shall maintain the details of registration of surrogacy
clinics, cancellation of registration, renewal of registration, grant of certificates to the
intending couple and surrogate mothers or any other matter pertaining to grant of
license, etc., of the surrogacy clinics in such format as may be prescribed and submit
the same to the National Assisted Reproductive Technology and Surrogacy Board.
Chapter VII
OFFENCES AND PENALTIES
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,
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 17 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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.
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.
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;
(c) the period and manner in which a person shall store human embryo or
gamete under clause (vii) of Section 3;
(d) the form and manner of application for obtaining certificate of
recommendation from the Board under proviso to sub-clause (a) of clause (ii)
of Section 4;
(e) the insurance coverage in favour of the surrogate mother from an insurance
company and the manner of such coverage under item (III) of sub-clause (a)
of clause (iii) of Section 4;
(f) the number of attempts of surrogacy or providing of gametes under the
proviso to item (III) of sub-clause (b) of clause (iii) of Section 4;
(g) the form in which consent of a surrogate mother has to be obtained under
clause (ii) of Section 6;
(h) the number of oocytes or embryos to be implanted in the uterus of the
surrogate mother under Section 9;
(i) the conditions under which the surrogate mother may be allowed for abortion
during the process of surrogacy under Section 10;
(j) the form and manner in which an application shall be made for registration
and the fee payable thereof under sub-section (2) of Section 11;
(k) the facilities to be provided, equipment and other standards to be maintained
by the surrogacy clinics under sub-section (4) of Section 11;
(l) the period, manner and form in which a certificate of registration shall be
issued under sub-section (1) of Section 12;
(m) the manner in which the certificate of registration shall be renewed and the
fee payable for such renewal under sub-section (3) of Section 12;
(n) the manner in which an appeal may be preferred under Section 14;
(o) the qualifications and experiences of the Members as admissible under clause
(f) of sub-section (2) of Section 17;
(p) the procedures for conducting an inquiry against the Members under sub-
section (2) of Section 21;
(q) the conditions under which a Member of the Board eligible for re-
appointment under Section 24;
(r) the other functions of the Board under clause (g) of Section 25;
(s) the manner in which reports shall be furnished by the State Assisted
Reproductive Technology and Surrogacy Board and the Union territory
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 20 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Assisted Reproductive Technology and Surrogacy Board to the Board and the
Central Government under clause (iii) of Section 26;
(t) the other functions of the State Board under clause (iv) of Section 26;
(u) the qualifications and experiences of the members as admissible under
clause (f) of Section 27;
(v) the age of the person to be appointed as a member, referred to in clause (f)
of Section 27, under the proviso to clause (b) of sub-section (1) of Section 28;
(w) the procedures for conducting an inquiry against the members under sub-
section (2) of Section 31;
(x) the conditions under which the members of State Board eligible for re-
appointment under Section 34;
(y) empowering the appropriate authority in any other matter under clause (d) of
Section 36;
(z) the other powers of appropriate authority under clause (d) of sub-section (1)
of Section 37;
(za) the particulars of the details of registration of surrogacy clinics, cancellation
of registration, etc., in such format under sub-section (2) of Section 37;
(zb) the manner of giving notice by a person under clause (b) of sub-section (1)
of Section 44;
(zc) the period up to which records, charts, etc., shall be preserved under sub-
section (1) of Section 46;
(zd) the manner in which the seizure of documents, records, objects, etc., shall
be made and the manner in which seizure list shall be prepared and delivered
under sub-section (1) of Section 47; and
(ze) any other matter which is to be, or may be, or in respect of which provision
is to be made by rules.
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;
(c) the manner in which a person may be temporarily associated with the Board
under sub-section (1) of Section 22;
(d) the time and place of the meetings of the State 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 29;
(e) the manner in which a person may be temporarily associated with the Board
under sub-section (1) of Section 32; and
(f) any other matter which is required to be, or may be, specified by regulations.
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
SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 21 Wednesday, January 18, 2023
Printed For: Mrinal Satish, National Law School of India University Bangalore
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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.
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.
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.
———
1. Received the assent of the President on the 25th December, 2021.
2.
January 25, 2022 [Vide Noti. No. S.O. 292(E), dated 20-1-2022].
3. The words “ex officio” omitted by Noti. No. S.O. 2204(E), dated 12-5-2022 (w.e.f. 12-5-2022).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.