During the 17th Lok Sabha, ‘The Select Committee’10 constituted in Rajya Sabha
delved deep into all aspects of surrogacy through series of meetings with bureaucrats,
NGOs, medical professionals, lawyers, researchers, commissioning parents, surrogate
mothers and surrogate children. It also gathered first-hand knowledge by meeting all
concerned at the hubs of surrogacy in Anand (Gujarat), Hyderabad and Mumbai.
Thus, the safeguards have been studied, exhaustively discussed and very carefully and
comprehensively incorporated in the Surrogacy (Regulation) Act,2021. The regulation
of the ART services, which forms the basis of surrogacy, was also processed by GOI
parallelly and The ART (Regulation) Act, 2021, got enacted in December 2021.
5. Existing Safeguards as per the Extant Laws in the Country
The need to regulate the surrogacy services in the country was primarily to protect all
rights of the children born through surrogacy, prevent exploitation of the surrogate
mothers and provide ethical opportunity of parenthood to the needy and intending
couples/women. Safeguards of the rights of the children born through surrogacy
arrangements as per the two recently promulgated Acts viz, The ART (Regulation)
Act, 2021 and the Surrogacy(Regulation) Act, 2021, are elaborated below starting
with the relevant provisions of the Surrogacy (Regulation) Act, 2021:
(i)
As per Section 3(i) of the Surrogacy Act, only registered surrogacy clinics can
carry out surrogacy services as per all relevant provisions of the Act to ensure
greater accountability, primarily towards the children born through surrogacy.
(ii) Only altruistic surrogacy {Section 4(ii)(b) of The Surrogacy Act} is allowed to
prevent commercial dealing of children involved.
(iii) Qualifications of manpower including paediatricians, gynaecologists,
embryologists, etc. have been specified for the registered surrogacy clinics for
ensuring quality services and health of the children born through surrogacy.
(iv) Sex selection at any stage of surrogacy is prohibited. The Pre-Conception and
Pre-Natal Diagnostic Techniques (PCPNDT)11 Act and Medical Termination of
Pregnancy (MTP)12Act will hold good for surrogacy processes as well.
(v) Section 4(iii)(a)(I) of The Surrogacy Act outlines strict eligibility criteria for
intending couples, ensuring that only couples who genuinely require surrogacy
due to medical conditions, can opt for gestational surrogacy. It should not amount
The Report of the Select Committee on The Surrogacy (Regulation) Bill, 2019, was presented to Rajya
Sabha on 5 February 2020.
11
The Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, is an Act of the
Parliament of India that was enacted to stop female foeticides and arrest the declining sex ratio in India.
The act banned prenatal sex determination.
12
The Medical Termination of Pregnancy Act, 1971 — An Act to provide for the termination of certain
pregnancies by registered Medical Practitioners and for matters connected therewith or incidental thereto.
10
Journal of the National Human Rights Commission, Vol. 22, 2023
69