shall be punishable with imprisonment for a term which may extend upto ten
years and with a fine which may extend to ten lakh rupees on contraventions of
the provisions of clauses (a) to (g) of sub-section (I) of Section 38’ and out of
these, the clauses relating to the children are:
‘(c)abandon or disown or exploit or cause to be abandoned,
disowned or exploited in any form, the child or children born
through surrogacy;
(d)exploit or cause to be exploited the surrogate mother or the child
born through surrogacy;
(e)sell human embryo or gametes for the purpose of surrogacy….
(g)conduct sex-selection in any form for surrogacy'.
Offences and penalties will be a big deterrent to prevent violation of rights of a
surrogate child.These provisions will help ensure that surrogacy arrangements
are carried out with the best interests of the child in mind, including adherence
to the provisions related to parentage, citizenship, inheritance, health and care.
(xv) Section 24 of the ART Act lists out the duties of ART clinics using human gametes
and embryos including:
‘24(d)a clinic shall never mix semen from two individuals for the
procedures specified under this Act;
24(e)the embryos shall not be split and used for twinning to increase
the number of available embryos;’
In addition to this, Section 23 of the ART Act, 2021,mandates the ART Clinics and
ART Banks to maintain detailed records of all donors’ oocytes, sperm or embryos
used or unused.Also, Section 46(I) of the Surrogacy(Regulation) Act, 2021,
mandates all surrogacy clinics to maintain records, charts, forms, reports, consent
letters, agreements and all documents specified under the Act. All these provisions
will go a long way in protecting the identity and origins of children born through
ART or Surrogacy.The ART Act, thus, emphasises and protects the best interests
of the child by ensuring legal and ethical practices by the ART clinics and ART
Banks.
(xvi) Section 27(3) of the ART Act, 2021 provides that, an ART Bank shall not supply
the sperm or oocyte of a single donor to more than one commissioning couple.
This signifies that one male donor’s gamete cannot be used for more than one
single woman (divorcee or widow) intending to avail surrogacy.
74
Journal of the National Human Rights Commission, Vol. 22, 2023