I have been asked the same question several prospective intended parents, surrogate mothers and Doctors. One of my clients also came to telling that her Doctor refused to continue with the treatment since she thought that the Bill is enforceable. I am writing this blog post to answer this question.
When will this Surrogacy Bill, 2016 become a law? Is it legal to go for surrogacy right now?
A Bill is not a law. A Bill is a document that would be considered by the Parliament to become a law. As far as the Surrogacy Bill, 2016 is concerned, the copy of the Bill has not been released but only the policy statement of the government has been released. According to the latest reports from the Government, the Government is still is accepting comments on this Bill and there is no clarity on when this Bill would be passed. The following are few pointers from the Bill:
- Only allowed the altruistic surrogacy to be allowed meaning that the surrogate mother cannot be compensated/paid for carrying the child.
- Only Indian nationals who are married for atleast a period of 5 years can take up surrogacy arrangement.
- Foreign Nationals cannot take up surrogacy in India.
- OCI Card holders and PIO card holders may not be able to take up surrogacy.
- Single parents and homosexuals cannot take up surrogacy.
- The surrogate mother must be a close relative of the commissioning couple.
- The maximum age limit for opting for surrogacy for Intending Parents are 50 and 55 years for women and men respectively.
- The parents who have either biological child or adopted child cannot opt for altruistic surrogacy for further expansion of their family.
- The Surrogacy Bill proposes any violation shall be punishable by 10 years besides a fine of Rs. 10,00,000 (Rupees Ten Lakhs Only).
- It is unclear if the Bill allows compensated egg donation.
What about already commenced surrogacy arrangements?
Surrogacy Arrangements that have already commenced should not be affected by the Surrogacy Bill. In any case, the Surrogacy Bill, 2016 is not expected to have retrospective effect. The rights of the surrogate mothers and the Commissioning Couple that has already been incurred by them by way of a surrogacy agreement must not be by the surrogacy bill. Therefore things can go as usual.
Can Commissioning Couple enter into new surrogacy agreements?
Until the Surrogacy Bill, 2016 has been passed by both houses of the Parliament and assent of the President of India has been obtained, the Surrogacy Bill does not come into effect. I would like to point out that commercial surrogacy and egg donation are perfectly legal at the moment as the bill has not been introduced in the Parliament. The Surrogacy Bill, 2016 is still in consultative process and I would request you to voice your comments and concerns to the Government to ensure that the Bill takes into account the practical aspects of the implementation of the Bill. However, till the time the Bill is passed at the Parliament, commercial surrogacy can continue to take place for Indian married couples. However foreign nationals would not be able to take up the surrogacy arrangement.