Surrogacy Chapter 7

“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015
Chapter – VII
Conclusions and Suggestions
The analysis of ratio decidendi of cases and the result of empirical research
through questionnaire shows that there is a dire need of a comprehensive legislation on
surrogacy in India. Besides the proposed legislation, there are other laws which will
regulate the surrogacy arrangement. Indian Contract Act, 1872 will govern the formation
of a contract and its consequences in case of its breach. Thus, the provisions of Indian
Contract Act, 1872 are to be kept in mind.
It is worthwhile to note that the Transplantation of Human Organ Act, 1994 bans
the sale, loaning and commercialization of trade of human organs. In contradiction, the
proposed Assisted Reproductive Technology (Regulation) Bill, 2010 and 2013, following
the Indian Council for Medical Research Guidelines, 2005, promoting commercial
surrogacy, allows hiring of sperms, eggs and wombs through civil contracts for
manufacturing babies. The dilemma and clash finds resolution only in commercial terms
with no check or control under any existing statutory Indian law.
Recently, the Government of India through the Medical Visa Regulations, 2012
has decided that only foreign married men and women with a subsisting marriage of over
two years will be permitted to enter into surrogacy agreements in India on medical visa on
strict terms and conditions. This research has also shown the same results.
In accordance with the results of our research, our hypotheses stand proved. Our
hypotheses were as follows:
1) Whether surrogacy is a problem in the present social, legal and commercial set up in
India? (Now stands proved after this research)
2) Whether surrogacy is affecting reproductive rights in general and health rights in
particular directly or indirectly? (Now stands proved after this research)
3) Whether there is a need of any draft model surrogacy agreement between all the parties
to surrogacy arrangement? (Now stands proved after this research)
4) Whether there is a dire need of a comprehensive legislation for regulation and control
of various types of surrogacy in India? (Now stands proved after this research)
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Thus, the researcher has taken up the drafting of the proposed legislation, i.e.,
Surrogacy Arrangement (Regulation and Control) Bill, 2015 as well as surrogacy
agreement one by one. So far as drafting of new legislation on surrogacy is concerned, she
has kept in mind the rules of interpretation for the purposes of construing the meaning of
proposed legislation. Although rules of interpretation are applicable after the enactment of
law but in this thesis she has taken care of all such rules. These rules include: golden rule
of interpretation1; principle of ejusdem generis2; noscitur a sociis3 among other principles
of statutory interpretation.4 Non-obstante clauses5; definitions; mandatory and directory
provisions; repeals and savings are taken due care. In the proposed legislation none of the
repealing section has been incorporated because there was nothing to repeal in as much as
there was absence of law on surrogacy arrangement in India.
SHORT TITLE
The short title of the Bill we have undertaken is as follows:
Short Title: - The Surrogacy Arrangement (Regulation and Control) Bill, 2015
LONG TITLE
Long Title: - The long title of the Bill is as follows: -
An Act to provide for a national framework for the accreditation, regulation,
supervision and control of assisted reproductive technologies clinic, for prevention of
misuse of assisted reproductive technologies, for safe and ethical practice of assisted
1
In the construction of statutes, the golden rule is that the words of a statute must prima facie be given their
ordinary meaning, unless there be something in the context or in the object of the statute in which they occur
or in the circumstances in which they are used, to show that they were used in a special sense different from
their ordinary grammatical sense.
2
‘Ejusdem Generis’ means ‘of the same category’. When particular words pertaining to a class, category or
genus are followed by general words, the general words are construed as limited to thing of the same kind as
those specified. This rule reconciles the incompatibility between the specific and general words used in a
statute.
3
The rule of construction ‘noscitur a sociis’ that the meaning of the word is to be judges by the company it
keeps. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to
words found in immediate connection with them. Ejusdem generis is only an application of rule of noscitur a
sociis.
4
For further details see Singh, G.P., Principles of Statutory Interpretation, 5th ed. 1992.
5
Non-obstante clause is a clause beginning with ‘notwithstanding anything contained in this Act or in some
particular provision in the Act, or in some particular Act, or in any other law for the time being in force’,
which is sometimes appended to a Section in the beginning, with a view to give the enacting part of the
Section, in case of conflict, an overriding effect over the provision or Act mentioned in non-obstante clause.
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reproductive technologies services and for matters connected therewith or incidental

thereto.
STATEMENT OF OBJECTS AND REASONS
A review of the laws of various countries including judicial precedents reveals that
there is absence of law on surrogacy in our country. Thus, a comprehensive legislation on
this subject is needed in India. The surrogacy arrangement needs a national framework for
the accreditation, regulation, supervision and control of assisted reproductive technologies
clinic so that misuse of assisted reproductive technologies is prevented and safe and
ethical assisted reproductive technologies services are provided. A clear cut written
agreement for the protection of the rights and duties of the parties to the surrogacy
arrangement is also needed to avoid exploitation of any of the parties to it. At the same
time sourcing, storage, handling and record keeping for the gametes, embryos and
surrogate mothers is also needed. Any violation of any of the provisions or rules made
hereunder requires a deterrence and punishment.
ENACTMENT FORMULA
The proposed Surrogacy Arrangement (Regulation and Control) Bill, 2015 is
drafted here. The Bill will be submitted to the Government of India for their kind
consideration. It is expected that the Indian Parliament will take up this Bill in the year
2015 itself and will get it passed soon. Thus, its enactment formula is as follows: -
BE IT ENACTED BY THE PARLIAMENT IN THE 66 TH YEAR OF THE REPUBLIC
OF INDIA AS FOLLOWS
PREAMBLE
The Preamble to the Act contains a brief introduction of the new law.
HEADINGS
Headings have been given before each and every section of the Bill
MARGINAL NOTES
Marginal Notes provide a brief indication about the contents of each and every
section.
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PUNCTUATION AND ILLUSTRATIONS

A due care is taken about the punctuations and illustrations while drafting the Bill.
DEFINITIONS
All definitions are taken up in section 2 of the Bill in an alphabetical order
DEFINITIONS ARE SUBJECT TO CONTRARY CONTEXT

This is taken up as follows: - “Unless the context otherwise requires…”
PROVISO
The normal function of a proviso is to except something out of enactment or to
qualify something enacted therein which but for proviso would be within the purview of
enactment.
DISTINCTION BETWEEN PROVISO, EXCEPTION AND SAVING CLAUSE

An exception is intended to restrain the enacting clauses to particular cases.
Proviso is used to remove special cases from the general enactment and provide for them
especially. While saving clause is used to preserve from destruction certain rights,
remedies or privileges already existing.
EXPLANATION
An explanation is at times appended to a section to explain the meaning of words
contained in the section. However, explanation is a part and parcel of the enactment.
SCHEDULES
Schedules appended to the statute form part of the statute. They are added towards the end
and their use is made to avoid encumbering the sections in the statute with matters of
excessive detail.
Keeping on view the above items we have made an attempt to draft the new Bill
which is detailed as follows: -
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7.1 The Surrogacy Arrangement (Regulation and Control) Bill,
2015:
The Surrogacy Arrangement (Regulation and Control) Bill, 2015
Contents
PREAMBLE
CHAPTER – I
PRELIMINARY
1. Short title, extent and commencement
2. Definitions
CHAPTER – II
CONSTITUTION OF AUTHORITIES TO REGULATE ASSISTED
REPRODUCTIVE TECHNOLOGIE
3. Establishment of National Advisory Board
4. Meetings of National Advisory Board
5. Functions of National Advisory Board
6. Establishment of State Boards
7. Meetings of State Boards
8. Powers and functions of State Boards
9. Term of office, conditions of service, etc., of Chairperson
and other members of State Boards
10. Procedure of State Boards
11 Constitution and functions of the Registration Authority
12. Proceedings before State Boards to be judicial proceedings
CHAPTER – III
PROCEDURES FOR REGISTRATION AND COMPLAINTS
13. Registration and accreditation of clinics
14. Who may apply for registration
15. Grant of registration
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16. Renewal, suspension or revocation of registration

17. Registration Authority to inspect premises
18. Applicability to ART banks and research organizations
19. Appeal to the State Board
CHAPTER – IV
DUTIES OF AN ASSISTED REPRODUCTIVE TECHNOLOGY CLINIC
20. General duties of assisted reproductive technology clinics
21. Duty of the assisted reproductive technology clinic to
obtain written consent
22. Duty of the assisted reproductive technology clinic to keep
accurate records
23. Duties of assisted reproductive technology clinics using
gametes and embryos
24. Pre-implantation Genetic Diagnosis
25. Sex selection
CHAPTER – V
SOURCING, STORAGE, HANDLING AND RECORD KEEPING FOR
GAMETES, EMBRYOS AND SURROGATES
26. Sourcing of gametes
27. Storage and handling of gametes and embryos
28. Records to be maintained by the ART bank
29. Restriction on sale of gametes, zygotes and embryos
CHAPTER – VI
REGULATION OF RESEARCH ON EMBRYOS, GAMETES OR OTHER
HUMAN REPRODUCTIVE MATERIAL
30. Permission of the Department of Health Research for research
31. Regulation of research
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CHAPTER – VII
RIGHTS AND DUTIES OF PATIENTS, DONORS, SURROGATES AND
CHILDREN
32. Rights and duties of patients
33. Rights and duties of donors
34. Rights and duties in relation to surrogacy
35. Determination of status of the child
36. Right of the child to information about donors or surrogates
CHAPTER – VIII
OFFENCES AND PENALTIES
37. Prohibition of advertisement relating to pre-natal determination
of sex and punishment for contravention
38. Offences and penalties
39. Presumption in the case of conduct of pre-natal diagnostic
techniques
40. Penalty for contravention of the provisions of the Act or rules
for which no specific punishment is provided
41. Offences by companies
42. Offence to be cognizable, non-bailable and non-compoundable
42A. Trial of offences by Special Surrogacy Courts
CHAPTER – IX
MISCELLANEOUS
43. Maintenance of records
44. Power to search and seize records etc.
45. Power to remove difficulties
46. Protection of action taken in good faith
47. Power to make regulations
48. Power of the Central Government to make rules
49. Power of State Government to make rules
50. Act to have effect in addition to other Acts
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51. Model Surrogacy Agreement

52. Grant of special surrogacy leave/child care leave to surrogate mother
PREAMBLE
The ‘miracle of science’ has made it possible for Bollywood personalities like
Shah Rukh Khan and his wife Gauri Khan, Aamir Khan and his wife Kiran Rao to have
babies without impregnation of their respective wives through surrogacy arrangement.
Surrogacy, a pre-fertilization agreement to carry a child for another, is largely unregulated
and unreported. It is estimated that 15 percent of couples around the world are infertile.
This implies that infertility is one of the most highly prevalent medical problems. The
magnitude of the infertility problem also has enormous social implications. Besides the
fact that every couple has the right to have a child, in India infertility widely carries with it
a social stigma. In the Indian social context specially, children are also a kind of oldage
insurance.
With the enormous advances in medicine and medical technologies, today 85

percent of the cases of infertility can be taken care of through medicines, surgery and/or
the new medical technologies such as in vitro fertilization (IVF) or intracytoplasmic sperm
injection (ICSI). It may be recalled that the birth of the first child, Louise Brown in 1978,
through the technique of in vitro fertilization by Robert G Edwards and Patrick Steptoe,
was a path-breaking step in control of infertility; it is, in retrospect, considered as one of
the most important medical advances of the last century.
Most of the new technologies aimed at taking care of infertility, involve handling
of the gamete – spermatozoa or the oocyte – outside the body; they also often involve the
donation of spermatozoa or oocyte, or the use of a surrogate mother who would be
carrying a child with whom she has no biological relationship. These technologies not
only require expertise but also open up many avenues for unethical practices which can
affect adversely the recipient of the treatment, medically, socially and legally.
The last nearly 20 years have seen an exponential growth of infertility clinics that
use techniques requiring handling of spermatozoa or the oocyte outside the body, or the
use of a surrogate mother. As of today, anyone can open infertility or assisted reproductive
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technology (ART) clinic; no permission is required to do so. There has been, consequently
a mushrooming of such clinics around the country.
In view of the above, in public interest, it has become important to regulate the
functioning of such clinics to ensure that the services provided are ethical and that the
medical, social and legal rights of all those concerned are protected.
The bill details procedures for accreditation and supervision of infertility clinics
(and related organizations such as semen banks) handling spermatozoa or oocytes outside
of the body, or dealing with gamete donors and surrogacy, ensuring that the legitimate
rights of all concerned are protected, with maximum benefit to the infertile
couples/individuals within a recognized framework of ethics and good medical practice.
An act to provide for a national framework for the accreditations, regulation,

supervision and control of assisted reproductive technology clinics, for prevention of
misuse of assisted reproductive technology, for safe and ethical practice of assisted
reproductive technology services and for matters connected therewith or incidental
thereto.
BE IT ENACTED by the Parliament in the 66th year of the Republic of India as follows:
THE SURROGACY ARRANGEMENT (REGULATION AND CONTROL) ACT, 2015

(ACT NO. …………2015)
CONTENTS
CHAPTER - I
PRELIMINARY
1. Short title, extent and commencement –
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(1) This Act may be called the Surrogacy Arrangement (Regulation and Control) Act,
2015
(2) It applies, in the first instance, to the whole States of …………….. and
…………………………………….. and the Union Territories; and it shall apply to such
other States which adopt this Act by resolution passed in that behalf under Clause (1) of
Article 252 of the Constitution.
(3) It shall come into force in the States of …………………. and………………………..
and the Union Territories, on such dates as the Central Government may, by notification
appoint, and in any other States which adopt this Act under Clause (1) of Article 252 of
the Constitution, on the date of such adoption; and any reference in this Act to the
commencement of this Act shall, in relation to any State or Union Territory, mean the date
on which this Act comes into force in such a State or Union Territory.
2. Definitions — In this Act, and in any rules and regulations framed hereunder, unless
the context otherwise requires –
a. “ART bank”, means an organization that is set up to supply sperm / semen,

oocytes / oocyte donors and surrogate mothers to assisted reproductive
technology clinics or their patients;
b. “artificial insemination”, means the procedure of artificially transferring

semen into the reproductive system of a woman and includes insemination
with the husband’s semen or with donor semen;
c. “assisted reproductive technology” (ART), with its grammatical variations

and cognate expressions, means all techniques that attempt to obtain a
pregnancy by handling or manipulating the sperm or the oocyte outside the
human body, and transferring the gamete or the embryo into the
reproductive tract;
d. “assisted reproductive technology clinic”, means any premises used for

procedures related to assisted reproductive technology;
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e. “biological parent(s)”, means genetic parent(s);
f. “child”, means any individual born through the use of assisted reproductive
technology;
g. “Commissioning parents/couples/individuals”, means parents, couples or

individuals, respectively, who approach an ART clinics or ART bank for
providing a service that the ART Clinic or the ART bank is authorized to
provide.
h. “couple”, means two persons living together and having a sexual

relationship that is legal in India;
i. “cryo-preservation”, means the freezing and storing of gametes, zygotes

and embryos;
j. “Department of Health Research”, means Department of Health Research,

Ministry of Health and Family Welfare, Government of India;
k. “donor”, means the donor of a gamete or gametes but does not include the
husband who provides the sperm or the wife who provides the oocyte to be
used in the process of assisted reproduction for their own use;
l. “egg”, means the female gamete (that is, oocyte)
m. “embryo”, means the fertilized ovum that has begun cellular division and
continued development up to eight weeks;
n. “fertilization”, means the penetration of the ovum by the spermatozoon and
fusion of genetic materials resulting in the development of a zygote;
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o. “foetal reduction”, means reduction in the number of foetuses in the case of

multiple pregnancies;
p. “foetus”, means the product of conception, starting from completion of

embryonic development until birth or abortion;
q. “gamete", means sperm and oocyte (that is egg);
r. “gamete donor”, means a person who provides sperm or oocyte with the
objective of enabling an infertile couple or individual to have a child;
s. “Indian Council of Medical Research”, means the Indian Council of

Medical Research (ICMR) as registered under the Societies Registration
Act, 1860;
t. “implantation”, means the attachment and subsequent penetration by the

zona-free blastocyst, which starts five to seven days following fertilization;
u. “infertility”, means the inability to conceive after at least one year of

unprotected coitus; or an anatomical / physiological condition that would
prevent an individual from having a child;
v. “married couple”, means two persons whose marriage is legal in the

country / countries of which they are citizens;
w. “oocyte” and “ovum”, mean, respectively, the female gamete (that is, egg)
present in the ovary, and an ovulated oocyte in which the first polar body
has been released;
x. “patient(s)”, means an individual / couple who comes to an infertility clinic

and is under treatment for infertility;
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y. “Pre-implantation Genetic Diagnosis”, includes the technique in which an

embryo formed through in-vitro fertilization is tested for specific disorders
prior to the transfer;
z. “sperm”, means the male gametes produced in the testicles and contained in
semen;
aa. “surrogacy”, means an arrangement in which a woman agrees to a

pregnancy, achieved through assisted reproductive technology, in which
neither of the gametes belong to her or her husband, with the intention to
carry it and hand over the child to the person or persons for whom she is
acting as a surrogate;
bb. “surrogate mother”, means a woman who is a citizen of India and is

resident in India, who agrees to have an embryo generated from the sperm
of a man who is not her husband and the oocyte of another woman,
implanted in her to carry the pregnancy to viability and deliver the child to
the couple / individual that had asked for surrogacy;
cc. “surrogacy agreement”, means a contract between the person(s) availing of

assisted reproductive technology and the surrogate mother and her
husband;
dd. “unmarried couple”, means two persons, both of marriageable age, living
together with mutual consent but without getting married, in a relationship
that is legal in the country / countries of which they are citizens;
ee. words and expressions used herein and not defined but defined in the Code
of Criminal Procedure, 1973 and Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 [Act 57 of 1994] shall
have the meaning respectively assigned to them in those Acts;
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ff. “zygote”, means the fertilized oocyte prior to the first cell division.
CHAPTER - II
CONSTITUTION OF AUTHORITIES TO REGULATE
ASSISTED REPRODUCTIVE TECHNOLOGY
3. Establishment of National Advisory Board –
(1) With effect from such date as the Central Government may, by notification, appoint,
there shall be established a Board to be known as the National Advisory Board for
Assisted Reproductive Technology, hereafter referred to as the National Board, to exercise
the jurisdiction and powers and discharge the functions and duties conferred or imposed
on the Board by or under this Act.
(2) The National Board shall consist of such number of members, not exceeding twenty
one, as may be prescribed by the Central Government and, unless the rules otherwise
provide, the National Board shall consist of the following –
(a) Secretary, Department of Health Research, Government of India, who shall be the
Chairman of the Board;
(b) A senior scientist having knowledge of assisted reproductive technology, from the
Department of Health Research or the Indian Council of Medical Research, who shall be
the Member-Secretary of the Board;
(c) A representative, not below the rank of Joint Secretary, from the Ministry of Health
and Family Welfare;
(d) The nominee of an Indian professional society concerned primarily with assisted
reproduction;
(e) Up to sixteen other experts – of whom one each shall be a nominee of the Ministry of
Health and Family Welfare and Indian Council of Medical Research, and at least six of
whom shall be women – in the fields of assisted reproduction, gynaecology, embryology,
andrology, bioethics, mammalian reproduction, medical genetics, social science, law, or
human rights, to be nominated by the Central Government.
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(3) The Chairman of National Board shall nominate a Vice Chairman from among its
members.
4. Meetings of National Advisory Board –
(1) The National Board shall meet as and when necessary, not less than two times a year,
and at such time and place in the country as the Chairperson of the National Board may
think fit.
(2) The Chairperson of the National Board shall preside over the meetings of the National
Board.
(3) If, for any reason, the Chairperson of the National Board is unable to attend any
meeting of the National Board, the Vice-Chairperson of the National Board shall preside
over the meeting.
5. Functions of National Advisory Board –
(1) The National Board may recommend modification from time to time in the attached
rules and schedules where relevant in regard to the following, and perform any other
functions and tasks assigned to it by the Central Government:
(a) minimum requirements related to staff and physical infrastructure for the various
categories of assisted reproductive technology clinics;
(b) regulations in respect of permissible assisted reproductive technology procedures;
(c) regulations in respect of selection of patients for assisted reproductive technology
procedures;
(d) encouragement and promotion of training and research in the field of assisted
reproduction;
(e) encouragement of the establishment and maintenance of a national database in respect
of infertility;
(f) guidelines for counseling and providing patients with all necessary information and
advice on various aspects of assisted reproductive technology procedures;
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(g) ways and means of disseminating information related to infertility and assisted
reproductive technologies to various sections of the society;
(h) regulations in respect of research on human embryos;
(i) proforma for obtaining information from donors of gametes and surrogate mothers,
consent forms for various procedures, and contracts and / or agreements between the
various parties involved, in all of the languages listed in the Eighth Schedule of the
Constitution;
(j) policies from time to time on assisted reproduction;
6. Establishment of State Boards –
(1) Every State Government shall, within 180 days of the issue of the notification under
sub-section (1) of section 3, by notification in the Official Gazette, establish a State Board
for Assisted Reproductive Technology to exercise the jurisdiction and powers and
discharge the functions and duties conferred or imposed on the State Boards by or under
this Act.
(2) The State Boards shall consist of such number of members, not exceeding twelve, as
may be prescribed by the State Government and, unless the rules otherwise provide, the
State Boards shall consist of the following members, namely –
(a) The Secretary of the Department of Health and Family Welfare, who shall be
Chairperson, ex officio;
(b) The nominee of an Indian professional society concerned primarily with assisted
reproduction who shall be the Vice Chairperson, ex officio;
(c) An officer not below the rank of a Joint Secretary, who shall be the Member-Secretary
of the Board;
(d) Up to nine other members – of whom at least four shall be women – who shall be
experts in the fields of assisted reproduction, gynaecology, embryology, andrology,
bioethics, mammalian reproduction, medical genetics, social science, law, or human
rights, to be nominated by the State Government.
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(3) The Chairman of the State Board shall nominate a Vice Chairman from among its
members.
7. Meetings of State Boards –
(1) The State Board shall meet as and when necessary, but not less than three times a year,
and at such time and place as the Chairperson of the State Board may think fit.
(2) The Chairperson of the State Board shall preside over the meetings of the State Board.
(3) If for any reason the Chairperson of the State Board is unable to attend any meeting of
the State Board, the Vice Chairperson of the State Board shall preside over the meeting.
8. Powers and functions of State Boards –
(1) Subject to the provisions of this Act and the rules and regulations adopted thereunder,
the State Board shall have the responsibility for laying down the policies and plans for
assisted reproduction in the State.
(2) Without prejudice to the generality of the provisions contained in subsection

(1) of this section, the State Board, taking into account the recommendations, policies and
regulations of the National Board, may –
(a) advise the State Government to constitute a Registration Authority or Authorities as
required, at least of six experts in assisted reproduction technology or a related field, for
the use of assisted reproductive technology in the State;
(b) monitor the functioning of the Registration Authority subject, in particular, to the
guidelines laid down by the National Advisory Board;
(c) coordinate the enforcement and implementation of the policies and guidelines for
assisted reproduction;
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(d) constitute advisory committees consisting of experts in the field of assisted

reproduction and related fields at the State or district level, to make recommendations on
different aspects of assisted reproduction;
(e) perform such other functions prescribed under this Act;
(3) Notwithstanding anything contained in section 12 of this Act, the State Board may,
suo moto, whether on the basis of a complaint or otherwise, examine and review any
decision of the Registration Authority.
(4) In the exercise of its functions under this Act, the State Board shall give such
directions or pass such orders as are necessary, with reasons to be recorded in writing.
9. Term of office, conditions of service, etc., of Chairperson and other members of

State Boards –
(1) Before appointing any person as the Chairperson or other member, the appropriate
Government shall satisfy itself that the person’s integrity is such that his / her professional
interest shall not affect prejudicially his functions as such member.
(2) The Chairperson and every other Member shall hold office for such period, not
exceeding five years, as may be specified by the appropriate government in the order of
his appointment, but shall be eligible for re-appointment.
(3) Notwithstanding anything contained in sub-section (1) of this section, a member may
by writing under his / her hand and addressed to the appropriate Government resign his /
her office at any time;
(4) A vacancy caused by the resignation or removal of the Chairperson or any other
member shall be filled by fresh appointment.
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(5) In the event of the occurrence of a vacancy in the office of the Chairperson by reason
of his / her death, resignation or otherwise, such one of the members as the appropriate
Government may, by notification, authorize in this behalf, shall act as the Chairperson till
the date on which a new Chairperson, appointed in accordance with the provisions of this
Act to fill such vacancy, takes charge of the office.
(6) When the Chairperson is unable to discharge his / her functions owing to absence,
illness or any other cause, the Vice Chairperson shall discharge the function of the
Chairpersons, till the date on which the Chairperson resumes his duties.
(7) The salaries and allowances payable to and the other terms and conditions of service of
the Chairperson and other members shall be such as may be prescribed: provided that
neither the salary and allowances nor the other terms and conditions of service of the
Chairperson or any other member shall be varied to his disadvantage after his
appointment.
(8) The Chairperson and every other member shall, before entering upon his / her office
make a declaration of fidelity and secrecy in the form set out in the Schedule.
(9) The Chairperson ceasing to hold office as such shall not hold any appointment or be
connected with the management or administration in any company, hospital, clinic,
society, trust or other undertaking in relation to which any matter has been the subject
matter of consideration before the State Board, for a period of three years from the date on
which he ceases to hold such office.
10. Procedure of State Boards –
(1) Subject to the provisions of this Act, the State Board shall have powers to –
(a) regulate the procedure and conduct of the business;
(b) delegate its powers or functions to such persons or authorities as prescribed in the rules
or regulations made under this Act.
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(2) The State Boards shall, for the purposes of any inquiry or for any other purpose under
this Act, have the powers to –
(a) summon and enforce the attendance of any witness and examine him / her on oath;
(b) order the discovery and production of document or other material objects producible as
evidence;
(c) receive evidence on affidavit;
(d) requisition any public record from any court or office;
(e) issue any order for the examination of witnesses;
(f) any other matter which may be prescribed.
11. Constitution and functions of the Registration Authority –
(1) The State Government shall constitute the Registration Authority as per the advice of
the State Board, within a period of three months of the advice.
(2) The Registration Authority shall have a full-time Chairman of the level of a Secretary
to the State Government, who shall be a recognized expert in assisted reproductive
technology or a related field.
(3) The other members of the Registration Authority shall be part-time members, and shall
be adequately compensated for their services.
(4) Before appointing any member of the Registration Authority, the Government shall
satisfy itself that his / her integrity is such that his / her professional interest shall not
affect prejudicially his / her functions as a member.
(5) The Registration Authority shall be provided by the State Government with adequate
supporting staff and secretarial assistance, and suitable accommodation.
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(6) The Registration Authority shall issue an appropriate letter granting or rejecting
registration to an assisted reproductive technology clinic.
12. Proceedings before State Boards to be judicial proceedings –
(1) Every State Board shall be deemed to be a civil court and when any offence as is
described in this Act is committed in the view or presence of the State Board, the State
Board may, after recording the facts constituting the offence and the statement of the
accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a
Magistrate having jurisdiction to try the same, and the Magistrate to whom any such case
is forwarded shall proceed to hear the complaint against the accused as if the case has been
forwarded to him under section 346 of the Code of Criminal Procedure, 1973.
(2) Every proceeding before a State Board shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228, and for the purposes of section 196 of the
Indian Penal Code, and the Board shall be deemed to be a civil court for all the purposes
of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
CHAPTER - III
PROCEDURES FOR REGISTRATIONS AND COMPLAINTS
13. Registration and accreditation of clinics –
(1) All assisted reproductive technology clinics shall, within such period and in such form
and manner as may be prescribed, register themselves with the Registration Authority.
(2) An application for registration by an assisted reproductive technology clinic under sub-
section (1) of this section shall contain the particulars of the applicant including all details
of techniques and procedures of assisted reproductive technology practiced at such clinic.
(3) The State Board may, subject to such terms and conditions as may be prescribed,
register any assisted reproductive technology clinic on the basis of the techniques and
procedures of assisted reproductive technology practiced at such clinic, such as –
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(a) infertility treatment, including Intra-Uterine Insemination (IUI), Artificial Insemination

with Husband’s semen (AIH), and Artificial Insemination using Donor Semen (AID),
involving the use of donated or collected gametes;
(b) infertility treatment involving the use and creation of embryos outside the human
body;
(c) processing or storage of embryos;
(d) research.
(4) Notwithstanding anything contained in this Act or any of the Rules made thereunder,
no assisted reproductive technology clinic performing any of the functions under sub-
section (3) of this section, or any other advanced diagnostic, therapeutic or research
functions, shall practice any aspect of such diagnosis, therapy or research without a
certificate of accreditation issued by the State Board.
(5) The practice of any aspect of assisted reproductive technology in contravention of the
provisions of this section shall constitute an offence under this Act.
(6) Assisted reproductive technology clinics registered under this Act shall be deemed to
have satisfied the provisions of the PC & PNDT Act, 1994 [amended in 2002], and shall
not be required to seek a separate registration under the said Act.
14. Who may apply for registration –
(1) Assisted reproductive technology clinics, ART banks and research organizations using
human embryos, operative on the date of notification of this Act, shall obtain a temporary
registration within six months of the notification of the State Registration Authority by the
State Board, and regular registration within 18 months of the above notification. If an
assisted reproductive technology clinic that has applied for temporary registration under
this clause to the State Registration Authority does not receive the registration or hear
from the above Authority within 60 days of the receipt of the application by the Authority,
the clinic would be deemed to have received the temporary registration.
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(2) No assisted reproductive technology clinic, ART bank or research organization using
human embryos, other than the ones specified above, shall practice any aspect of assisted
reproductive technology, or carry out any research on or using human embryos, or use any
premises for such purposes, without a registration under this Act.
(3) Any assisted reproductive technology clinic or ART bank or research organization
using human embryos, by whatsoever name called, may apply to the Registration
Authority for registration to operate the clinic, ART bank or research organization in
accordance with the procedure and criteria laid down in this Act.
(4) Every application under sub-section (2) of this section shall be in such form and shall
be accompanied by such fee and such documents as may be prescribed by the State
Government.
15. Grant of registration –
(1) The Registration Authority may, if it is satisfied that the criteria specified in the Rules
have been met, grant registration to the applicant for a term of three years under such
terms and conditions as it thinks fit.
(2) The Registration Authority shall, within one month of a registration being granted
under this section, report such registration to the State Board.
(3) The State Board shall maintain a record of all registrations applied for and granted
under this section.
(4) No registration shall be granted unless the Registration Authority, or such authorized
person or persons acting on its behalf, have inspected the premises of the applicant.
16. Renewal, suspension or revocation of registration –
(1) The Registration Authority may, on an application made to it in such form and manner
as may be prescribed, renew a registration granted under the provisions of this Act with
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effect from the date of its expiry if it is satisfied that the criteria prescribed in the Schedule
continue to be met.
(2) The Registration Authority may at any time suspend the operation of a registration and
call upon the holder of the registration to produce such documents or furnish such
evidence as may be required if it has reasonable grounds to believe that the terms and
conditions of the registration have not been met.
(3) When acting under sub-section (2) of this section, the Registration Authority shall
either revoke the registration or continue the registration, as the case may be, after giving
the holder of the registration adequate opportunity to be heard.
(4) The Registration Authority shall inform the concerned State Board of every assisted
reproductive technology clinic in respect of which it has granted, renewed, revoked or
denied a registration under this Act within one month of such an action being taken.
(5) The Registration Authority shall be deemed to have granted renewal for three years to
the applicant if the applicant does not receive a definitive communication from the
Registration Authority regarding the renewal application within sixty days of the receipt
of the application in the office of the Registration Authority.
17. Registration Authority to inspect premises – In the exercise of its powers under this
Act, the Registration Authority shall have the power to inspect, with or without prior
notice on a working day during working hours, any premises or call for any document or
material in the discharge of its powers and functions.
18. Applicability to ART banks and research organizations – The provisions of

sections 13 to 16, as relevant, shall apply also to ART banks and research organizations
using human embryos.
19. Appeal to the State Board –
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(1) Any person aggrieved by the decision of the Registration Authority made under this
Act may, within such period and in such manner and form as may be prescribed, prefer an
appeal to the State Board.
(2) On receipt of an appeal under sub-section (1) of this section, the State Board may, after
giving an opportunity to the appellant to be heard, and after making such further inquiry as
it thinks fit, confirm, modify or set aside the decision of the Registration Authority, within
three months of the receipt of the appeal.
CHAPTER – IV
DUTIES OF AN ASSISTED REPRODUCTIVE TECHNOLOGY CLINIC
20. General duties of assisted reproductive technology clinics –
(1) Assisted reproductive technology clinics shall ensure that patients, donors of gametes
and surrogate mothers are eligible to avail of assisted reproductive technology procedures
under the criteria prescribed by the rules under this Act and that they have been medically
tested for such diseases, sexually transmitted or otherwise, as may be prescribed and all
other communicable diseases which may endanger the health of the parents, or any one of
them, surrogate or child.
(2) It shall be the responsibility of an assisted reproductive technology clinic to obtain,

from ART bank(s), all relevant information, other than the name, personal identity and
address, of possible gamete donors, and assist the couple or individual desirous of the
donation, to choose the donor.
(3) When an ART bank receives a request from an assisted reproductive technology clinic
for a donor oocyte, a responsible member of the staff of the ART bank will accompany the
particular donor to the assisted reproductive technology clinic, and obtain a written
agreement from the authority designated for this purpose by the clinic, that the clinic shall,
under no circumstances (except when asked by a court of law), reveal the identity of the
donor to the recipient couple or individual or to anyone else; the clinic shall also ensure
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that all its staff is made aware of the fact that any step leading to disclosure of the identify
(i.e., name and address) to the recipient couple or individual or to anyone else, shall
amount to an offence punishable under this Act.
(4) Either of the parties seeking assisted reproductive technology treatment or procedures
shall be entitled to specific information in respect of donor of gametes including, but not
restricted to, height, weight, ethnicity, skin colour, educational qualifications, medical
history of the donor, provided that the identity, name and address of the donor is not made
known.
(5) Assisted reproductive technology clinics shall obtain donor gametes from ART banks
that have ensured that the donor has been medically tested for such diseases, sexually
transmitted or otherwise, as may be prescribed and all other communicable diseases which
may endanger the health of the parents, or any one of them, surrogate or child.
(6) Assisted reproductive technology clinics shall provide professional counseling to

patients or individuals about all the implications and chances of success of assisted
reproductive technology procedures in the clinic and in India and internationally, and shall
also inform patients and individuals of the advantages, disadvantages and cost of the
procedures, their medical side effects, risks including the risk of multiple pregnancy, the
possibility of adoption, and any such other matter as may help the couple or individual
arrive at a decision that would be most likely to be the best for the couple or individual.
(7) Assisted reproductive technology clinics shall make couples or individuals, as the case
may be, aware of the rights of a child born through the use of assisted reproductive
technology.
(8) Assisted reproductive technology clinics shall explain to couples or individuals, as the
case may be, the choice or choices of treatment available to them and the reason or
reasons of the clinic for recommending a particular treatment, and shall clearly explain the
advantages, disadvantages, limitations and cost of any recommended or explained
treatment or procedure.
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(9) Assisted reproductive technology clinics shall ensure that information about clients,
donors and surrogate mothers is kept confidential and that information about assisted
reproductive technology treatment shall not be disclosed to anyone other than a central
database to be maintained by the Department of Health Research, except with the consent
of the person or persons to whom the information relates, or in a medical emergency at the
request of the person or persons or the closest available relative of such person or persons
to whom the information relates, or by an order of a court of competent jurisdiction.
(10) No assisted reproductive technology clinic shall consider conception by surrogacy for
patients for whom it would normally be possible to carry a baby to term. Provided that
where it is determined that unsafe or undesirable medical implications of such conception
may arise, the use of surrogacy may be permitted.
(11) Assisted reproductive technology clinics shall provide to couples or individuals, as

the case may be, a pre-stamped self-addressed envelope to inform the clinic of the results
of the assisted reproductive technology procedure performed for the couple or the
individual.
(12) No assisted reproductive technology clinic shall obtain or use sperm or oocyte
donated by a relative or known friend of either of the parties seeking assisted reproductive
technology treatment or procedures.
(13) Every assisted reproductive technology clinic shall establish a mechanism to look
into complaints in such manner as may be prescribed.
(14) No assisted reproductive technology procedure shall be performed on a woman below

21 years of age, and any contravention of this stipulation shall amount to an offence
punishable under this Act.
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(15) All assisted reproductive technology clinics shall issue to the infertile couple /
individual a discharge certificate stating details of the assisted reproductive technology
procedure(s) performed on the couple / individual.
(16) Only a registered ART bank (and no other organization) shall be authorized to
advertise for, procure or provide semen, oocyte donor or surrogate mother.
21. Duty of the assisted reproductive technology clinic to obtain written consent –
(1) No assisted reproductive technology clinic shall perform any treatment or procedure of
assisted reproductive technology without the consent in writing of all the parties seeking
assisted reproductive technology to all possible stages of such treatment or procedures
including the freezing of embryos.
(2) No assisted reproductive technology clinic shall freeze any human embryos without
specific instructions and consent in writing from all the parties seeking assisted
reproductive technology in respect of what should be done with the gametes or embryos in
case of death or incapacity of any of the parties.
(3) No assisted reproductive technology clinic shall use any human reproductive material
to create an embryo or use an in vitro embryo for any purpose without the specific consent
in writing of all the parties to whom the assisted reproductive technology relates.
(4) The consent of any of the parties obtained under this section may be withdrawn at any
time before the embryos or the gametes are transferred to the concerned woman’s uterus.
22. Duty of the assisted reproductive technology clinic to keep accurate records –
(1) All assisted reproductive technology clinics shall maintain detailed records, in such
manner as may be prescribed, of all donor oocytes, sperm or embryos used, the manner
and technique of their use, and the individual or couple or surrogate mother, in respect of
whom it was used.
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(2) All assisted reproductive technology clinics will, as and when such central facilities are
established, put on line all information available to them in regard to progress of the
patient (such as biochemical and clinical pregnancy) within seven days of the information
being available, withholding the identity of the patient.
(3) Records maintained under sub-section (1) of this section shall be maintained for at
least a period of ten years, upon the expiry of which the assisted reproductive technology
clinic shall transfer the records to a central database of a, national ART registry to be set
up by the Department of Health Research at the Hqrs of the ICMR.
(4) In the event of the closure of any assisted reproductive technology before the expiry of
the period of ten years under sub-section (2) of this section, the assisted reproductive
technology clinic or ART bank shall immediately transfer the records to a central database
of a, national ART registry to be set up by the Department of Health Research at the Hqrs
of the ICMR
23. Duties of assisted reproductive technology clinics using gametes and embryos –
(1) Assisted reproductive technology clinics shall harvest oocytes in accordance with such
regulations of the National Board or concerned State Board or any rule as may be
prescribed under this Act.
(2) The number of oocytes or embryos that may be placed in a woman in any one cycle
shall be according to the rules and regulations provided under this Act.
(3) No woman should be treated with gametes or embryos derived from the gametes of
more than one man or woman during any one treatment cycle.
(4) An assisted reproductive technology clinic shall never mix semen from two individuals
before use.
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(5) Where a multiple pregnancy occurs as a result of assisted reproductive technology, the
concerned assisted reproductive technology clinic shall inform the patient immediately of
the multiple pregnancy and its medical implications and may carry out foetal reduction
after appropriate counseling.
(6) The collection of gametes from a person whose death is imminent shall only be
permissible if such person’s spouse intends to avail assisted reproductive technology to
have a child.
(7) No assisted reproductive technology clinic shall use ova that are derived from a foetus,
in any process of in vitro fertilization.
(8) No assisted reproductive technology clinic shall utilize any semen, whether from an
ART bank or otherwise, for any aspect of assisted reproductive technology unless such
semen is medically analyzed in such manner as may be prescribed.
(9) Any contravention of stipulation under sub-section 3, 4, 7 and 8 of this section shall
amount to an offence under this Act.
24. Pre-implantation Genetic Diagnosis –
(1) Pre-implantation Genetic Diagnosis shall be used only to screen the embryo for
known, pre-existing, heritable or genetic diseases or as specified by the Registration
Authority.
(2) Destruction or donation (with the approval of the patient) to an approved research
laboratory for research purposes, of an embryo after Pre-implantation Genetic Diagnosis,
shall be done only when the embryo suffers from pre-existing, heritable, life-threatening
or genetic diseases
(3) The State Board may lay down such other conditions as it deems fit in the interests of
Pre-implantation Genetic Diagnosis.
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25. Prohibition of Sex selection –
(1) No assisted reproductive technology clinic shall offer to provide a couple with a child
of a pre-determined sex.
(2) It shall be a criminal offence and it is prohibited for anyone to do any act, at any stage,
to determine the sex of the child to be born through the process of assisted reproductive
technology.
(3) No person shall knowingly provide, prescribe or administer anything that would ensure
or increase the probability that an embryo shall be of a particular sex, or that would
identify the sex of an in vitro embryo, except to diagnose, prevent or treat a sex-linked
disorder or disease.
(4) No assisted reproductive technology clinic will carry out any assisted reproductive
technology procedure to separate, or yield fractions enriched in sperm of X or Y
variations.
(5) Any contravention of stipulation under sub-section 1, 2, 3 and 4 of this section shall
amount to an offence under this Act.
CHAPTER - V
SOURCING, STORAGE, HANDLING AND RECORD KEEPING FOR
GAMETES, EMBRYOS AND SURROGATES
26. Sourcing of gametes –
(1) The screening of gamete donors and surrogates; the collection, screening and storage
of semen; and provision of oocyte donor and surrogates, shall be done by an ART bank
registered as an independent entity under the provisions of this Act.
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(2) An ART bank shall operate independently of any assisted reproductive technology
clinic.
(3) ART banks shall obtain semen from males between twenty one years of age and forty
five years of age, both inclusive, and arrange to obtain oocytes from females between
twenty one years of age and thirty five years of age, both inclusive, and examine the
donors for such diseases, sexually transmitted or otherwise, as may be prescribed, and all
other communicable diseases which may endanger the health of the parents, or any one of
them, surrogate or child.
(4) All ART banks shall have standard, scientifically established facilities and defined
standard operating procedures for all its scientific and technical activities.
(5) All ART banks shall cryo-preserve sperm donations for a quarantine period of at least
six months before being used and, at the expiry of such period, the ART bank shall not
supply the sperm to any assisted reproductive technology clinic unless the sperm donor is
tested for such diseases, sexually transmitted or otherwise, as may be prescribed.
(6) An ART bank may advertise for gamete donors and surrogates, who may be
compensated financially by the bank.
(7) An ART bank shall not supply the sperm of a single donor for use more than seventy
five times.
(8) No woman shall donate oocytes more than six times in her life, with not less than a
three-month interval between the oocyte pick-ups.
(9) Eggs from one donor can be shared between two recipients only, provided that at least
seven oocytes are available for each recipient.
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(10) All unused oocytes would be either appropriately preserved by the assisted
reproductive technology clinic for use on the same recipient(s), or given for research to a
bonafide organization.
(11) One sample of semen supplied by an ART bank shall be used by the assisted
reproductive technology clinic only once on only one recipient.
(12) An ART bank shall obtain all necessary information in respect of a sperm or oocyte
donor or a surrogate, including the name, identity and address of such donor or surrogate,
in such manner as may be prescribed, and shall undertake in writing to the donor to keep
such information confidential.
(13) No ART bank shall divulge the name, identity or address of any sperm or oocyte
donor to any person or assisted reproductive technology clinic except in pursuance of an
order or decree of a court of competent jurisdiction.
(14) Any person or ART bank who divulges the name, identity or address of a sperm
donor in contravention of subsections 11 and 12 of this section shall be guilty of an
offence under this Act.
(15) An ART bank may, for such appropriate fee as may be prescribed, store any semen
obtained from a donor for the exclusive use of the wife or partner of the donor.
27. Storage and handling of gametes and embryos –
(1) The highest possible standards should be followed in the storage and handling of
gametes and embryos in respect of their security, and with regard to their recording and
identification.
(2) No donor gamete shall be stored for a period of more than five years.
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(3) An embryo may, for such appropriate fee as may be prescribed, be stored for a
maximum period of five years and at the end of such period such embryo shall be allowed
to perish or donated to any research organization for research purposes with the consent of
the patients. If during the period of five years, one of the commissioning partners dies, the
surviving partner can use the embryo for herself or for her partner, provided an
appropriate consent was taken earlier.
Provided that where the persons to whom such embryo relates fails to pay the fee,
or both the commissioning persons die, the assisted reproductive technology clinic may,
subject to such regulations as may be prescribed, destroy the embryo or transfer the
embryo to any accredited research organization under section 18 of this Act.
28. Records to be maintained by the ART bank –
(1) The ART bank shall keep a record of all the gametes received, stored and supplied, and
details of the use of the gametes of each donor.
(2) The records shall be maintained for at least ten years, after which the records shall be
transferred to a central database of the Department of Health Research, Government of
India.
(3) Where an ART bank closes before the expiry of the ten year period, the records shall
be immediately transferred to the central database of the Department of Health Research,
Government of India.
(4) If not otherwise ordered by a court of competent jurisdiction, all ART banks shall
ensure that all information about clients and donors is kept confidential and that
information about gamete donation shall not be disclosed to anyone other than the central
database of the Department of Health Research.
29. Restriction on sale of gametes, zygotes and embryos –
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(1) The sale, transfer or use of gametes, zygotes and embryos, or any part thereof or
information related thereto, directly or indirectly to any party outside India is prohibited
and shall be deemed to be an offence under this Act except in the case of transfer of own
gametes and embryos for personal use with the permission of the National Board.
(2) The sale of gametes, except for use by an assisted reproductive technology clinic for
treating infertility, and the sale of zygotes and embryos, or of any information related to
gametes, zygotes or embryos, within India, is prohibited and shall be deemed to be an
offence under this Act.
CHAPTER - VI
REGULATION OF RESEARCH ON EMBRYOS
30. Permission of the Department of Health Research for research –
(1) The sale of any gametes and embryos or their transfer to any country outside India, for
research is absolutely prohibited and shall constitute a criminal offence under this Act.
(2) Research shall only be conducted on such gametes and embryos that have been
donated for such purpose.
(3) No research shall be conducted using embryos except with the permission of the
Department of Health Research.
(4) Any person or organization, by whatsoever name called, may apply to the Department
of Health Research for registration as a research institution permitted to conduct research
on embryos.
(5) While granting permission on an application for registration made under sub-section 4
of this section, the Department of Health Research may prescribe, and the applicant shall
be bound by such terms and conditions as it thinks fit.
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(6) The Department of Health Research may, if it has reasonable grounds to believe that
any of the terms and conditions prescribed under subsection 5 of this section have not
been met, –
(a) call for the production of such documents or the furnishing of such evidence as may be
required;
(b) inspect, or order any officer authorized in this behalf to inspect, any premises related to
the grant of registration;
(c) suspend the registration of the research institution, after giving all concerned parties
adequate opportunity to be heard.
(7) The Department of Health Research may make such regulations as it thinks fit to
provide for research on embryos.
(8) Any act or thing done or omitted to be done in contravention of the provisions of this
Chapter shall be deemed to be an offence under this Act.
31. Regulation of research –
(1) In exercising its powers under this Chapter, the Department of Health Research shall
ensure that –
(a) no research is conducted on any human embryo unless such research is necessary in
public interest;
(b) no research is conducted on any human embryo created in vitro unless such research is
necessary in public interest to acquire further scientific knowledge;
(c) no research is conducted on any human embryo, other than embryos given for storage
to an ART bank under sub-section (3) of section 27, unless full and informed consent in
writing is obtained from the persons from whom such embryo was created;
(d) no advertisement is issued, and no purchase, sale or transfer is made, of any human
embryo created in vitro or any part thereof, except in accordance with this Act;
(e) no human embryo created in vitro is maintained for a period exceeding fourteen days
or such other period as recommended by the National Advisory Board;
(f) no work is done leading to human reproductive cloning;
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(g) such other terms and conditions that may be prescribed by the ICMR, are adhered to.
(2) Any assisted reproductive technology clinic or other research institution or person
conducting any research in contravention of the provisions of this Act or any rules or
regulations prescribed hereunder shall be an offence under this Act.
CHAPTER - VII
RIGHTS AND DUTIES OF PATIENTS, DONORS, SURROGATES AND
CHILDREN
32. Rights and duties of patients –
(1) Subject to the provisions of this Act and the rules and regulations made thereunder,
assisted reproductive technology shall be available to all persons including single persons,
married couples and unmarried couples.
(2) In case assisted reproductive technology is used by a married or unmarried couple,

there must be informed consent from both the parties.
(3) The parents of a minor child have the right to access information about the donor,
other than the name, identity or address of the donor, or the surrogate mother, when and to
the extent necessary for the welfare of the child.
(4) All information about the patients shall be kept confidential and information about
assisted reproductive technology procedures done on them shall not be disclosed to
anyone other than the central depository of the Department of Health Research, except
with the consent of the person or persons to whom the information relates, or by a court
order.
33. Rights and duties of donors –
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(1) Subject to the other provisions of this Act, all information about the donors shall be
kept confidential and information about gamete donation shall not be disclosed to anyone
other than the central database of the Department of Health Research, except with the
consent of the person or persons to whom the information relates, or by an order of a court
of competent jurisdiction.
(2) Subject to the other provisions of this Act, the donor shall have the right to decide
what information may be passed on and to whom, except in the case of an order of a court
of competent jurisdiction.
(3) A donor shall relinquish all parental rights over the child which may be conceived
from his or her gamete.
(4) No assisted reproductive technology procedure shall be conducted on or in relation to

any gamete of a donor under this Act unless such donor has obtained the consent in
writing of his or her spouse, if there, to such procedure.
(5) The identity of the recipient shall not be made known to the donor.
34. Rights and duties in relation to surrogacy –
(1) Both the couple or individual seeking surrogacy through the use of assisted
reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement
which shall be legally enforceable.
(2) All expenses, including those related to insurance if available, of the surrogate related
to a pregnancy achieved in furtherance of assisted reproductive technology shall, during
the period of pregnancy and after delivery as per medical advice, and till the child is ready
to be delivered as per medical advice, to the biological parent or parents, shall be borne by
the couple or individual seeking surrogacy.
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(3) Notwithstanding anything contained in sub-section (2) of this section and subject to the
surrogacy agreement, the surrogate mother may also receive monetary compensation from
the couple or individual, as the case may be, for agreeing to act as such surrogate.
(4) A surrogate mother shall relinquish all parental rights over the child.
(5) No woman less than twenty one years of age and over thirty five years of age shall be
eligible to act as a surrogate mother under this Act.
Provided that no woman shall act as a surrogate for more than five successful live
births in her life, including her own children.
(6) Any woman seeking or agreeing to act as a surrogate mother shall be medically tested
for such diseases, sexually transmitted or otherwise, as may be prescribed, and all other
communicable diseases which may endanger the health of the child, and must declare in
writing that she has not received a blood transfusion or a blood product in the last six
months.
(7) Individuals or couples may obtain the service of a surrogate through an ART bank,
which may advertise to seek surrogacy provided that no such advertisement shall contain
any details relating to the caste, ethnic identity or descent of any of the parties involved in
such surrogacy. No assisted reproductive technology clinic shall advertise to seek
surrogacy for its clients.
(8) A surrogate mother shall, in respect of all medical treatments or procedures in relation
to the concerned child, register at the hospital or such medical facility in her own name,
clearly declare herself to be a surrogate mother, and provide the name or names and
addresses of the person or persons, as the case may be, for whom she is acting as a
surrogate, along with a copy of the certificate mentioned in clause 17 below.
(9) If the first embryo transfer has failed in a surrogate mother, she may, if she wishes,
decide to accept on mutually agreed financial terms, at most two more successful embryo
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transfers for the same couple that had engaged her services in the first instance. No
surrogate mother shall undergo embryo transfer more than three times for the same
couple.
(10) The birth certificate issued in respect of a baby born through surrogacy shall bear the
name(s) of individual / individuals who commissioned the surrogacy, as parents.
(11) The person or persons who have availed of the services of a surrogate mother shall be
legally bound to accept the custody of the child / children irrespective of any abnormality
that the child / children may have, and the refusal to do so shall constitute an offence
under this Act.
(12) Subject to the provisions of this Act, all information about the surrogate shall be kept
confidential and information about the surrogacy shall not be disclosed to anyone other
than the central database of the Department of Health Research, except by an order of a
court of competent jurisdiction.
(13) A surrogate mother shall not act as an oocyte donor for the couple or individual, as
the case may be, seeking surrogacy.
(14) No assisted reproductive technology clinic shall provide information on or about

surrogate mothers or potential surrogate mothers to any person.
(15) Any assisted reproductive technology clinic acting in contravention of sub-section 14

of this section shall be deemed to have committed an offence under this Act.
(16) In the event that the woman intending to be a surrogate is married, the consent of her
spouse shall be required before she may act as such surrogate.
(17) A surrogate mother shall be given a certificate by the person or persons who have
availed of her services, stating unambiguously that she has acted as a surrogate for them.
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(18) A relative, a known person, as well as a person unknown to the couple may act as a
surrogate mother for the couple/ individual. In the case of a relative acting as a surrogate,
the relative should belong to the same generation as the women desiring the surrogate.
(19) A foreigner or foreign couple not resident in India, or a non-resident Indian individual
or couple, seeking surrogacy in India shall appoint a local guardian who will be legally
responsible for taking care of the surrogate during and after the pregnancy, till the child /
children are delivered to the foreigner or foreign couple or the local guardian. Further, the
party seeking the surrogacy must ensure and establish to the assisted reproductive
technology clinic through proper documentation (a letter from either the embassy of the
Country in India or from the foreign ministry of the Country, clearly and unambiguously
stating that (a) the country permits surrogacy, and (b) the child born through surrogacy in
India, will be permitted entry in the Country as a biological child of the commissioning
couple/individual) that the party would be able to take the child / children born through
surrogacy, including where the embryo was a consequence of donation of an oocyte or
sperm, outside of India to the country of the party’s origin or residence as the case may be.
If the foreign party seeking surrogacy fails to take delivery of the child born to the
surrogate mother commissioned by the foreign party, the local guardian shall be legally
obliged to take delivery of the child and be free to hand the child over to an adoption
agency, if the commissioned party or their legal representative fails to claim the child
within one months of the birth of the child. During the transition period, the local guardian
shall be responsible for the well-being of the child. In case of adoption
or the legal guardian having to bring up the child, the child will be given Indian
citizenship.
(20) A couple or an individual shall not have the service of more than one surrogate at any
given time.
(21) A couple shall not have simultaneous transfer of embryos in the woman and in a
surrogate.
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(22) Only Indian citizens shall have a right to act as a surrogate, and no ART bank/ART
clinics shall receive or send an Indian for surrogacy abroad.
(23) Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any
act that would harm the foetus during pregnancy and the child after birth, until the time the
child is handed over to the designated person(s).
(24) The commissioning parent(s) shall ensure that the surrogate mother and the child she
deliver are appropriately insured until the time the child is handed over to the
commissioning parent(s) or any other person as per the agreement and till the surrogate
mother is free of all health complications arising out of surrogacy.
35. Determination of status of the child –
(1) A child born to a married couple through the use of assisted reproductive technology
shall be presumed to be the legitimate child of the couple, having been born in wedlock
and with the consent of both spouses, and shall have identical legal rights as a legitimate
child born through sexual intercourse.
(2) A child born to an unmarried couple through the use of assisted reproductive
technology, with the consent of both the parties, shall be the legitimate child of both
parties.
(3) In the case of a single woman the child will be the legitimate child of the woman, and
in the case of a single man the child will be the legitimate child of the man.
(4) In case a married or unmarried couple separates or gets divorced, as the case may be,
after both parties consented to the assisted reproductive technology treatment but before
the child is born, the child shall be the legitimate child of the couple.
(5) A child born to a woman artificially inseminated with the stored sperm of her dead
husband shall be considered as the legitimate child of the couple.
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(6) If a donated ovum contains ooplasm from another donor ovum, both the donors shall
be medically tested for such diseases, sexually transmitted or otherwise, as may be
prescribed, and all other communicable diseases which may endanger the health of the
child, and the donor of both the ooplasm and the ovum shall relinquish all parental rights
in relation to such child.
(7) The birth certificate of a child born through the use of assisted reproductive technology
shall contain the name or names of the parent or parents, as the case may be, who sought
such use.
(8) If a foreigner or a foreign couple seeks sperm or egg donation, or surrogacy, in India,
and a child is born as a consequence, the child, even though born in India, shall not be an
Indian citizen.
36. Right of the child to information about donors or surrogates –
(1) A child may, upon reaching the age of 18, ask for any information, excluding personal
identification, relating to the donor or surrogate mother.
(2) The legal guardian of a minor child may apply for any information, excluding personal
identification, about his / her genetic parent or parents or surrogate mother when required,
and to the extent necessary, for the welfare of the child.
(3) Personal identification of the genetic parent or parents or surrogate mother may be
released only in cases of life threatening medical conditions which require physical testing
or samples of the genetic parent or parents or surrogate mother.
Provided that such personal identification will not be released without the prior
informed consent of the genetic parent or parents or surrogate mother.
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CHAPTER - VIII
OFFENCES AND PENALTIES
37. Prohibition of advertisement relating to pre-natal determination of sex and

punishment for contravention –
(1) No assisted reproductive technology clinic shall issue or cause to be issued any
advertisement in any manner regarding facilities of prenatal determination of sex.
(2) No assisted reproductive technology clinic, or agent thereof, shall publish or distribute
or cause to be published or distributed any advertisement in any manner regarding
facilities of pre-natal determination of sex.
(3) Any person who contravenes the provisions of this section shall be punishable with
imprisonment for a term which may extend to five years and with fine which may extend
to ten thousand rupees.
Explanation - For the purposes of this section, “advertisement” includes any notice,
circular, label wrapper or other document and also includes any visible representation
made by means of any light, sound, smoke or gas.
38. Offences and Penalties –
(1) Any medical geneticist, gynecologist, registered medical practitioner or any person
who owns or operates any assisted reproductive technology clinic, or is employed in such
a facility and renders his professional or technical services to such facility, whether on an
honorary basis or otherwise, and who contravenes any of the provisions of this Act or
rules made thereunder, shall be punishable with imprisonment for a term which may
extend to three years and / or with fine which may extend to twenty five thousand rupees,
and on any subsequent conviction, with imprisonment which may extend to five years
and / or fine which may extend to fifty thousand rupees.
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(2) The name of the registered medical practitioner who has been convicted by the court
under sub-section 1 of this section shall be reported by the State Board to the respective
State Medical Council for taking necessary action including the removal of his name from
the register or the Council for a period of two years for the first offence and permanently
for any subsequent offence.
(3) Any person who seeks the aid of assisted reproductive technology or of a medical
geneticist, gynaecologist or registered medical practitioner for conducting pre-natal
diagnostic techniques on any pregnant woman for purposes other than those specified in
clause (2) of section 4 of the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 [Act 57 of 1994], shall be punishable with
imprisonment for a term which may extend to three years and with fine which may extend
to twenty five thousand rupees, and on any subsequent conviction with imprisonment
which may extend to five years and with fine which may extend to fifty thousand rupees.
(4) The transfer of a human embryo into a male person or into an animal that is not of the
human species shall be an offence under this Act and shall be punishable with
imprisonment for a term which may extend to three years and with fine which may extend
to twenty five thousand rupees.
(5) The sale of any embryo for research is absolutely prohibited and shall be an offence
under this Act punishable by imprisonment for a term which may extend to three years
and with fine which may extend to twenty five thousand rupees.
(6) Use of individual brokers or paid intermediaries to obtain gamete donors or surrogates
shall be an offence under this Act, punishable by imprisonment for a term which may
extend to three years and fine which may extend to twenty five thousand rupees.
39. Presumption in the case of conduct of pre-natal diagnostic techniques –
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Notwithstanding anything in the Indian Evidence Act, 1872, the court shall presume,
unless the contrary is proved, that the pregnant woman has been compelled by her
husband or the relative to undergo pre-natal diagnostic technique.
40. Penalty for contravention of the provisions of the Act or rules for which no
specific punishment is provided –
Whoever contravenes any of the provisions of this Act or any rules made thereunder, for
which no penalty has been elsewhere provided in this Act, shall be punishable with
imprisonment for a term which may extend to three years, or with fine which may extend
to twenty five thousand rupees., or with both, and in the case of continuing contravention,
with an additional fine which may extend to ten thousand rupees per week.
41. Offences by companies –
(1) Where any offence, punishable under this Act has been proven to be committed by a
company, every person who at the time the offence was committed was in charge of, and
was responsible to, the company for the conduct of the business of the company, as well
as the company, shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person
liable to any punishment, if he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to prevent the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1) of this section, where any
offence punishable under this Act has been committed by a company and it is proved that
the offence has been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be deemed to be guilty of that
offence and shall be liable to be proceeded against and punished accordingly.
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Explanation – For the purposes of this section,

(a) “company” means anybody corporate and includes a firm or other association of
individuals, and
(b) “director”, in relation to a firm, means a partner in the firm.
42. Offences to be Cognizable, Non-Bailable and Non-Compoundable – Every offence

under this Act shall be cognizable, non-bailable and non-compoundable.
42 A. Trial of Offences by Special Surrogacy Courts –
Every offence under this Act shall be triable by Court of Sessions. The Central or the State
Government, may constitute such number of Court of Sessions for each district, as it may
deemed fit. One Sessions Court may be designated for more than one district for working
as ‘Surrogacy Court’.
CHAPTER - IX
MISCELLANEOUS
43. Maintenance of records –
(1) All records, charts, forms, reports, consent letters and all other documents required to
be maintained under this Act and the rules shall be preserved for a period of ten years or
for such period as may be prescribed.
Provided that, if any criminal or other proceedings are instituted against any
facility using assisted reproductive technology, the records and all other documents of
such facility 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
concerned State Board or to any other person authorized by the concerned State Board in
this behalf.
44. Power to search and seize records etc. –
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(1) If the State Board has reason to believe that an offence under this Act has been or is
being committed at any facility using assisted reproductive technology, such Board or any
officer authorized thereof 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
officer considers necessary, such facility, and examine any record, register, document,
book, pamphlet, advertisement or any other material object found therein and seize the
same if the State Board 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, relating to searches and
seizures shall, so far as may be, apply to every search or seizure made under this Act.
45. 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 this Act as may appear to be necessary for removing
the difficulty:
Provided that no order shall be made under this section after the expiry of three
years from the 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.
46. Protection of action taken in good faith – No suit, prosecution or other legal
proceeding shall lie against the Central or the State Government or the National Board or
State Boards or Registration Authority or any officer authorized by any of them, for
anything which is in good faith done or intended to be done in pursuance of the provisions
of this Act.
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47. Power to make regulations – The National Advisory Board may, with the previous
sanction of the Central Government, by notification in the Official Gazette, make
regulations not inconsistent with the provisions of this Act and the rules made thereunder,
to provide for –
(a) 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;
(b) the conditions for the transfer of embryos and gametes to research institutions;
(c) regulation of Pre-implantation Genetic Diagnosis;
(d) research on embryos;
(e) the efficient conduct of the affairs of the Board;
(f) any other purpose that may be prescribed.
48. Power of the Central Government to make rules –
(1) The Central Government may 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) categories of assisted reproductive technology clinics;
(b) the minimum requirements regarding staff in assisted reproductive technology clinics;
(c) the minimum physical infrastructure requirements for an assisted reproductive
technology clinic;
(d) the various assisted reproductive technology procedures to be adopted by an assisted
reproductive technology clinic;
(e) the criteria for selecting patients for an assisted reproductive technology procedure;
(f) the criteria for selecting an assisted reproductive technology procedure for a patient;
(g) information and advice to, and counseling of patient;
(h) the eligibility of couples and individuals to use assisted reproductive technology;
(i) the eligibility of donors;
(j) the eligibility of surrogate mothers;
(k) the number of embryos that can be implanted in a woman;
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(l) the number of times that a patient can be given a procedure;

(m) the maintenance of records;
(n) procedure to search and seize;
(o) the criteria to be fulfilled for a license;
(p) the effective implementation of the Act.
(3) Every rule made by the Central Government under sub-section (1) of this section 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.
49. Power of State Government to make rules – Subject to the provisions of this Act
and the rules and regulations made thereunder, the State Government may make rules to
carry out the purposes of this Act.
50. Act to have effect in addition to other Acts – 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, except for the following:
a) Provision made in Section 13 (6) of this Act;
b) Inapplicability of the provision of the Right to Information Act in regard to provision

made in Section 20 (9) and 26 (13) of this Act.
51. Model Surrogacy Agreement – All the parties to the surrogacy arrangement of their
own shall enter into a written agreement before entering into a surrogacy arrangement
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failing which they will have to undergo an agreement in the model form given hereinafter
as Annexure – ‘A’6.
52. Grant of special surrogacy/child care leave to surrogate mother – If a surrogate

mother is in government job and she is ready to give her services for surrogacy, she will
be entitled to special surrogacy/child care leave for a period not exceeding three months
each before and after the delivery of the child on the recommendation of expert medical
practitioner. Her employer shall grant her such leave in addition to any other leave, to
which she is entitled under her service rules of the central or state government as the case
may be.
7.2 MODEL DRAFT SURROGACY AGREEMENT:

The second important question is how to bind the parties to surrogacy for
enforcement of their rights and duties. After long deliberations, it is now felt that a model
surrogacy agreement should be drafted for the benefit of all the parties to the surrogacy
agreement. The rules of drafting the agreement in detail have been taken into
consideration.7 It is proposed that if the parties to the surrogacy do not have their own
agreement, the following model draft surrogacy agreement will be applicable to them and
they will be bound to adopt the model draft surrogacy agreement. Keeping in view the
existing legislations on the field of agreements and the proposed new legislation for
control of surrogacy in India, following model of draft surrogacy agreement is proposed.
ANNEXURE – ‘A’
MODEL DRAFT SURROGACY AGREEMENT

This Surrogacy Agreement (hereinafter referred to as “Agreement”) is made at
(place)…………………………………on this day………………………………of……..
…………………between………………………………………………...……….., aged
about……………………...., resident of………………………...........(hereinafter referred
to as “Surrogate”)
AND
6
See 7.2 Model Draft Surrogacy Agreement in latter part of Chapter-VII.
7
For further details see Mogha's Law of Pleadings in India with Precedents, 18th Edition by G.C. Mogha
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Smt.……………………………………… (hereinafter referred to as “Intended Mother”)

and Shri………………………………………. (hereinafter referred to as “Intended
Father”) both permanent residents
of…………………………………………………………….. and presently residing
at…………………………………………………………………
The Surrogate, Intended Mother and Intended Father are collectively referred to in this
Agreement as the “Parties”.
RECITALS OF AGREEMENT
1) Intended Mother and Intended Father (hereinafter referred to as “Intended

Parents”) are a married couple living together as husband and wife, and are desirous to
enter into this Agreement for the purpose of parenting a child or children through the
services of a Surrogate. (as used herein, the term “Child” shall refer to all children born
through the services of a Surrogate pursuant to this Agreement).
2) The Surrogate is a widow after the demise of her husband Shri
…………………………………on………………and is desirous to enter into this
Agreement/The surrogate is a married woman and she and her husband are both agreeable
and desirous to enter into this agreement.
3) The Surrogate warrants, based on her information and belief, that Surrogate is
capable of carrying and bearing healthy, normal children, and further warrants that
Surrogate has given birth to one child (son/daughter namely………………………...born
on…………………), born healthy.
4) Intended Parents will attempt to conceive a Child by placement of the Embryo
conceived by In Vitro Fertilization (IVF) into the Surrogate who will be the carrier so that
Surrogate may become pregnant, carry a Child and give birth to a Child for Intended
Parents.
5) Surrogate desires and intends that any Child born pursuant to this Agreement
shall be morally, ethically, legally, contractually and otherwise the Child of the Intended
Parents for all purposes, that the Intended Parents shall assume all legal and parental rights
and responsibilities for the Child, and that Surrogate does not desire nor intend to assume
a parental or any other type of relationship with the Child. Surrogate specifically
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relinquishes any and all rights, responsibilities, and claims with respect to a Child born
pursuant to this Agreement, and specifically agree that it is in the best interest of the Child
that the Child be raised by the Intended Parents and be the Child of the Intended Parents
for all purposes, without any interference by Surrogate.
6) The Parties to this Agreement represent and warrant that all representations,
whether oral or written, made to any professional, person, entity or party, with respect to
their medical history and condition, the surrogacy arrangement, and any and all matters
contained in this Agreement are true and correct to the best of their knowledge, and that
they have not knowingly falsified or omitted any material information concerning these
matters.
7) The Parties to this Agreement represent and warrant that the decision to enter into
this Agreement is a fully informed decision, made after careful and unemotional
reflection, that they have come forward voluntarily to enter into this Agreement free of
any economic or emotional duress, that the consent or permission of no other person is
necessary for the performance of this Agreement, and that no Party has any reason to
believe that any other Party did not freely and voluntarily execute this Agreement.
8) The Surrogate understands that the Intended Parents have waited many years and
are now expending significant time and financial resources to bring a child into their
home, and are now relying greatly on the Surrogate to carry their Child. It is also
understood by the Parties that grave, severe and intense emotional distress, humiliation
and mental anguish may occur to either of the Parties as a result of an uncured or incurable
material breach by the other Party, and the breaching Party may be held liable for such
emotional distress, humiliation and mental anguish as well as other legal and equitable
remedies, under one or more legal theories. The Surrogate has been explained the contents
of the agreement in Hindi or in the local language and she has agreed to abide by the
same.
9) The Parties warrant that they understand that if any aspect or provision of this
Agreement violates any present or future non-waive-able civil or constitutional right of
any Party to this Agreement, or any present or future statute, law, ordinance or regulation,
that aspect or provision may not be enforced. However, the parties further warrant and
agree that any said aspect or provision shall be curtailed and limited only to the extent
necessary to bring it in compliance with the law.
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NOW THEREFORE, in consideration of the mutual promises contained herein and with
the intentions being fully bound hereby, the Parties agree as set forth hereinafter:
(A) PRIMARY INTENTION OF THE PARTIES

The purpose and intent of this Agreement is to provide a means for the Intended
Parents to become the parents of a Child, the Surrogate agrees to give birth to the child of
the intended parents with the help of in-vitro fertilization (IVF) procedure by using the
sperm of the intended father and by placing the fertilized embryo into the surrogate which
is carried and given birth to by the surrogate, conceived by in-vitro fertilization (IVF) into
the Surrogate who will be the carrier of the child. It is expressly understood and intended
that the Surrogate will not be the lawful parents of and/or raise any child conceived
through IVF procedure, and they each expressly state that they intend to and shall
relinquish any parental rights, custody and/or control they may have with respect to any
child conceived and born pursuant to the IVF procedure and/or this Agreement, and to
cooperate in any legal proceeding to declare a parental relationship between the Child and
the Intended Parents. It is the Intended Parents’ specific and express intention to be the
lawful parents of and raise any child conceived through the IVF procedure contemplated
herein.
(B) VOLUNTARINESS OF THE AGREEMENT

(a) The Parties warrant that they are comfortable with and knowledgeable about
the implications and issues of conceiving a child through surrogacy.
(b) The Parties each warrant that the decision to enter into this Agreement is a fully
informed decision, made after careful and unemotional reflection, that each Party has
come forward voluntarily to enter into this Agreement free of any economic or emotional
duress, and that the consent or permission of no other person is necessary for the
performance of this Agreement.
(C) IN VITRO FERTILIZATION (IVF) PROCEDURE
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The Surrogate agrees to give birth to the Child of the Intended Parents with the help
of In Vitro Fertilization (IVF) procedure by using the sperm of the intending father and by
placing the fertilized embryo into the Surrogate. The procedure shall take place according
to the times and procedures determined by the Treating Physician. The Parties agree that it
is their present intention that the Surrogate will undergo two (2) IVF procedures in the
first month. If the pregnancy of the Surrogate is not confirmed after 2 attempts, the
Surrogate will make a third and final attempt using the IVF procedure the following
month. In the event the pregnancy is not confirmed after all the three attempts as
mentioned above, the agreement shall be terminated and the amount as given to the
Surrogate as on that date will be kept by the Surrogate. It is clarified that in this event no
further payment will be made by the Intending Parents to the Surrogate.
(D) ASSUMPTION OF MEDICAL RISKS AND RELEASE

Surrogate acknowledges that the medical procedures have been thoroughly
explained to her by a physician, and that she has been advised of the psychological and
medical risks, which may result from the conduct contemplated by this Agreement.
Surrogate further acknowledges that she has signed an informed consent regarding the
possible medical risks associated with the medical procedures and the accompanying
medications to be administered to her.
(E) MEDICAL AND PYSCHOLOGICAL EVALUATIONS AND SCREENINGS

Surrogate and Intended Parents have undergone, or agree to undergo, physical
examinations under the direction of, and/or to the extent determined by, the Treating
Physician, to determine whether the physical health and well-being of the Parties are
satisfactory. The examination shall take place prior to the IVF procedure contemplated
herein, and shall be paid for by Intended Parents. The said physical examination may
include testing for venereal disease (including HIV and AIDS) in order to protect the
health of the Surrogate and the Child. The Surrogate and the Intended Parents agree to
undergo any further medical testing that the Treating Physician deems necessary, while
this Agreement is in effect and continuing until two months after the birth of the Child. All
costs of Surrogate’s physical examinations shall be paid by the Intended Parents.
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(F) SURROGATE’S CONDUCT

(a) The Surrogate agrees to comply with all medical instructions given to her by the
Treating Physician and/or the treating medical practitioner including any abstinence from
sexual intercourse for certain periods and further testing as may deem necessary. The
Surrogate further agrees that she will not engage, and has not engaged, in any activity in
which there is a possibility of semen being introduced into her body such that the
possibility of a pregnancy other than that contemplated by this Agreement may occur. All
Parties agree that from the time of the first medical examination, through to the time of
delivery of the Child, or such further time as may be directed by the Treating Physician,
the Surrogate has abstained and will continue to abstain from sexual activity, including
intercourse with any person that has not been tested by or at the direction of the Treating
Physician, that would allow the transmission of sexually transmitted diseases (including
AIDS), and shall remain monogamous. In the event Surrogate becomes pregnant by any
means other than that contemplated by this Agreement through any fault or negligence of
her own, said pregnancy shall constitute an incurable breach of this Agreement, to which
all legal remedies apply.
(b) The Surrogate agrees to follow all requirements regarding the taking of
medicine and vitamins prescribed by the Treating Physician and/or the medical
practitioner and to attend on time all scheduled doctors’ appointments. The Surrogate
further agrees to submit to any medical test or procedure deemed necessary or advisable
by her obstetrician and/or the Treating Physician including, after pregnancy is confirmed
to detect any potential genetic or congenital defects in the foetus(es). The Surrogate
further agrees to use all best efforts to carry the pregnancy of the Child to full term.
Except as otherwise stated herein, failure or refusal of the Surrogate to comply with all or
any of the provisions of this paragraph shall constitute a material breach of this Agreement
by Surrogate.
(c) The Surrogate agrees not to smoke cigarettes, marijuana or other substances, or
drink alcoholic beverages from the time of the commencement of cycle medications uptil
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the end of the pregnancy or negative pregnancy test results, or such further time as
instructed by the Treating Physician and/or the medical practitioner. The Surrogate also
agrees to limit her consumption of caffeinated beverages and products containing caffeine
and agrees that she will not consume more than one cup of coffee in a day. During the
term of this Agreement, the Surrogate agrees to submit to drug, alcohol, nicotine testing,
and/or testing for sexually transmitted and/or infectious diseases including HIV and AIDS,
as may be reasonably requested by the Intended Parents and paid for by the Intended
Parents, and further agrees to immediately upon request execute and deliver a written
consent form to administer such testing as may be requested by the testing clinic or lab.
The Surrogate also agrees not to use any prescription, non-prescription, homeopathic or
herbal medication, undergo any medical procedure, during and through the end of her
pregnancy (or such other time as instructed by the Treating Physician and/or obstetrician),
without the express consent of the intending parents.
(d) The Surrogate agrees to take vitamins and to maintain a healthy diet as
recommended by obstetricians for pregnant women (which can include the avoidance of
certain food and beverages), and not to participate in dangerous sports or hazardous
activities, strenuous physical activity, nor to knowingly allow herself to be exposed to
radiation, toxic chemicals or communicable diseases, during the term of this Agreement,
and agrees to follow all advisements by the Treating Physician and/or her obstetrician
concerning said matters.
(e) Surrogate further agrees that Intended Parents shall have the right to attend all
doctor visits including ultrasound examinations of any kind and with the approval of the
Surrogate’s obstetrician or the Treating Physician. Surrogate agrees to inform the Intended
Parents at least once a week of the progress of the pregnancy. The Surrogate hereby
waives her doctor-patient privilege, and agrees to sign any release form required to allow
Intended Parents to communicate with all treating or attending medical personnel, and
review medical records pertaining to Surrogate’s pregnancy or health.
(f) Surrogate agrees that she will notify Intended Parents upon the onset of labour
and that Intended Parents may be present in the delivery room during delivery of the
Child, with due respect for the Surrogate’s privacy and with the approval of the
Surrogate’s obstetrician. Surrogate shall sign any consent forms necessary to facilitate this
result. Surrogate agrees to use all reasonable efforts to deliver the Child in the selected and
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designed hospital as set forth herein, under medical supervision. The Surrogate further
agrees to deliver the Child by caesarean section in case necessary.
(g) The Surrogate agrees that during the pregnancy and 2 months after the birth of
the Child, she will remain in……………………………within close vicinity
of…………………………………..area. Furthermore, the Surrogate agrees that she will
remain contactable 24 hours a day from the date of execution of this Agreement till 2
months after the custody of the Child has been handed over to the Intended Parents.
(G) ABORTION, MISCARRIAGE AND SELECTIVE TERMINATION

(a) The Surrogate agrees that she will not abort the Child once conceived, or
selectively reduce the number of fetuses, except as stated herein. In the event there is a
risk that the Child will be physically or physiologically abnormal, in a manner that could
seriously affect the Child’s quality of life, the decision to abort or not to abort is to be
made by the Intended Parents, and the Surrogate hereby agrees to abort or not to abort in
accordance with the Intended Parents’ decision.
(b) In the event of a miscarriage/spontaneous abortion, or abortion at the insistence
of the Intended Parents as described herein (or by the attending physician as described
herein), no funds paid by the Intended Parents to the Surrogate shall be returned. Intended
Parents shall still remain liable for such costs incurred to date by the Surrogate pursuant to
the terms of this Agreement and such fees owing to the Surrogate upto such time, and such
medical costs arising from or reasonably relating to any such miscarriage or abortion as
described in this paragraph. Notwithstanding any other provision contained herein, should
the Parties desire another transfer procedure after any abortion or miscarriage, this
Agreement shall remain in full force and effect and financial considerations between the
Intended Parents and the Surrogate shall begin anew.
(H) CUSTODY AND PARENTAL RIGHTS

(a) The Intended Parents are entering into this Agreement with the Surrogate
whereby the Surrogate will undergo the IVF procedure using the sperm of the Intended
Husband and placing the fertilized embryo into the Surrogate so that the Child may be
taken into the home of the Intended Parents as their own lawful Child. The IVF procedure
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shall be performed by a licensed and qualified physician selected by the Surrogate and
approved by the Intended Parents (hereinafter referred to as “Treating Physician”).
(b) Except as otherwise specifically stated herein in this Agreement, the Intended
Parents shall take immediate, full and absolute custody of the Child upon birth,
notwithstanding any congenital, physical or mental abnormality of the Child, and all
decisions concerning the Child’s health, in utero and after delivery, shall be made by
Intended Parents.
(c) The Surrogate shall immediately relinquish full custody of the Child to the
Intended Parents upon the birth of the Child. In addition, it is specific intent of each and
every Party to this Agreement that the Surrogate shall not have any legal rights towards
the Child and that neither is the legal parent of any Child conceived and born pursuant to
the conduct contemplated by this Agreement. Any child born pursuant to the conduct
contemplated by this Agreement shall be morally, ethically, legally, contractually and
otherwise the Child of the Intended Parents for all purposes. The Surrogate agrees to sign
all necessary affidavits, consents and/or waivers, and to attend all necessary court
hearings, to establish the Intended Parents’ parentage, either prior to or after the Child’s
birth.
(d) Any Child conceived and born as a result of the conduct contemplated by this
Agreement shall have all testamentary and inheritance rights flowing from the Intended
Parents, and each of them, shall have testamentary and inheritance rights from the Child as
parents. The Surrogate shall not have any testamentary or inheritance rights from the
Child.
(I) NO FUTURE MEETINGS

The Parties further agree that they will not intervene in each other’s lives, and that
the Surrogate will not seek to contact the child or obtain any information concerning the
Child, unless otherwise agreed by any of the Parties in writing.
(J) PRIVACY AND CONFIDENTIALITY

(a) The Parties acknowledge that it is in the best interest of the Child that the
details surrounding the Child’s conception and birth shall remain private, and that any
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disclosure of the surrogate parenting arrangement to the Child, including the Surrogate’s
identity, shall be left to the sole discretion of the Intended Parents.
(b) The Parties agree that they will not provide, nor allow to be provided, any
information to the public, news media, or to any other individual (except the professionals
directly involved with the contemplated surrogacy arrangement) regarding their
involvement in the surrogacy arrangement or the identity of any Party herein without the
express written consent of all Parties hereto.
(K) NAME OF THE CHILD

The Surrogate agrees that it is the exclusive right of the Intended Parents to name
the Child and (to the extent permissible) to insert on the Child’s birth certificate the
Intended Parent’s name as the parents of the Child. Furthermore, the Surrogate agrees that
the name of the Child selected by the Intended Parents shall be placed on the birth
certificate issued in this case.
The Intended Parents will be free to choose the nationality of the Child.
(L) CONFIRMATION OF GENETIC PARENTAGE

Prior and/or subsequent to the birth of Child, the Surrogate shall submit, if requested
by the Intended Parents and as soon as reasonably possible, to a DNA or any other legally
recognized scientific test to confirm the genetic parentage of the Child, at the expense of
Intended Parents, under the direction of a physician designated by Intended Parents. The
inclusion of the Surrogate and/or any partner of the Surrogate, as genetic parents of the
Child by the DNA or other legally recognized scientific test shall constitute an incurable
breach on the part of the Surrogate, for which all legal remedies, whether in contract or
personal injury apply, and in which event Intended Parents shall have no responsibility
whatsoever to the Child. The Parties also agree to any DNA testing or other legally
recognized scientific testing, if required by a court of competent jurisdiction.
(M) DISPUTE RESOLUTION BY MUTUAL CONSULTATION AT PRE-LITIGATION

STAGE/ARBITRATION
(a) If any dispute or difference of any kind whatsoever arises between the Parties
in connection with or arising out of this Agreement including any question regarding its
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existence, validity or termination, the Parties shall seek to resolve any such dispute or
difference by mutual consultation at pre-litigation stage. However, under no circumstances
will the surrogate exercise a lien for disputes over compensation or otherwise. For all
practical purposes the Intended Parents shall be the legal parents of the child. If the
compromise at pre-litigation stage fails, then parties will resort to mediation.
(b) In the event mediation does not resolve the dispute between the Parties, the
Parties agree that all claims, disputes, or controversies arising out of or in relation to the
performance, interpretation, application or enforcement of this Agreement, except issues
pertaining to legal custody of the child, parental rights and/or parentage shall be settled in
binding arbitration, then either Party may give to the other Party formal notice in writing
that the dispute or difference exists, specifying its nature, the point(s) in issue and its
intention to refer the dispute to arbitration.
(c) If the Parties fail to resolve such dispute or difference by further consultation
within a period of seven (7) days from the date upon which such notice of dispute has
been given, the dispute or difference shall be referred to and finally settled by Arbitration.
(d) It is agreed between the Parties that in such event the arbitration shall be
conducted in accordance with the provisions of Arbitration and Conciliation Act, 1996.
The venue of the Arbitration shall be ………………………….and the language of the
Arbitration proceeding shall be English.
(e) The award of the arbitrator(s) shall be final and binding on the Parties.
(N) PRIMARY INTENTION OF THE PARTIES

In the event of any claim or dispute between the Parties concerning the
performance of the Parties contemplated by this Agreement, it is the desire of the Parties
that their mutual intentions, as reflected in this Agreement, control the disposition of such
dispute. The Parties’ primary intentions, as mutually expressed in the Agreement are:
(a) Surrogate intends to provide valuable assistance to the Intended Parents by
carrying the Intended Parents’ Child to term and thereafter delivering to the Intended
Parents a healthy Child to the fullest extent that she is capable.
(b) The Intended Parents intend to utilize Surrogate’s assistance to enable them to
have a Child that is the genetic product of the Intended Parents since they are unable to
achieve this goal without the assistance of the Surrogate.
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(c) The Parties intend for the Intended Parents to have the authority to make all
decisions affecting the health of the Child, both in utero and after the Child’s birth.
(d) The Parties intend to be fully bound by the terms of this Agreement
notwithstanding any changes that may occur in the law relating to surrogacy that may
otherwise affect their rights under this Agreement.
(O) ENTIRE AGREEMENT AND ITS INTEGRATION

This Agreement sets forth the entire agreement between the Parties. All
agreements, covenants, representations and warranties, express and implied, written and
oral, of the Parties are contained herein. No other agreements, covenants, representations
nor warranties, express and implied, oral or written, have been made by any Party to
other(s) with respect to this Agreement. All prior and contemporaneous conversations,
negotiations, possible and alleged agreements, representations, covenants and warranties
with respect to this Agreement are waived, merged and superseded. This is an integrated
Agreement. This Agreement applies to injuries to the benefit of, and binds all Parties
hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns.
(P) ENFORCEABILITY OF AGREEMENT

In the event of any of the provisions, whether sentences or entire paragraphs, of
this Agreement are deemed to be invalid or unenforceable, the same shall be deemed
severable from the remainder of this Agreement. If such provision shall be deemed invalid
due to its scope or breadth, such provision shall be deemed valid to the extent of the scope
or breadth permitted by law.
(Q) EXECUTION OF AGREEMENT

Each Party acknowledges that he/she fully understands this Agreement and its legal
effect, and that he/she is signing the same freely and voluntarily, and that no Party has any
reason to believe that the other Party did not freely and voluntarily execute this
Agreement.
(R) JURISDICTION
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The Parties agree that this Agreement shall be deemed to have been entered
in………………………………., and it is the express intent of the Parties and a material
term of this contact that this Agreement shall be governed by, construed and enforced in
accordance with the laws prevailing in India. The Parties agree that the jurisdiction and
venue for any matter under this Agreement, including any parentage action, and/or for the
resolution of any dispute arising under this Agreement shall vest exclusively in a court of
competent jurisdiction in…………………………………….
(S) GOVERNING LAW

This Agreement shall be governed by, construed in accordance with, the laws as
prevailing in India.
(T) SURVIVAL
Any provisions of this Agreement concerning the establishment or confirmation of
parental rights of the Intended Parents, the relinquishment/abandonment of any parental
rights of the Surrogate, confidentiality, contact with the Child, any representatives or
warranties made pursuant to this Agreement by any Party hereto, or any risks assumed by
any Party hereunder and any jurisdictional and enforceability provisions shall survive
termination of this Agreement.
(U) FACILITATION OF LEGAL PROCESS

(a) Each party to this Agreement agrees to facilitate and cooperate in a timely manner
with the legal proceedings to establish the parental rights of the Intended Parents and to
terminate any parental rights of the Surrogate to the Child. For instance, and by way of
examples only, the Parties agree to sign any documents required for the hospital’s
discharge of the Child to the Intended Parents and/or as may be necessary in connection
with any legal proceeding necessary to effectuate the status of the Intended Parents as the
legal parents of the Child, including adoption if necessary or requested, and further agree
to attend any court hearing as necessary to effectuate said status.
(b) The Intended Parents agree in a timely manner to confirm in writing their
parentage after the pregnancy has been verified by, without limitation, signing a
declaration/Affidavit to establish Intended Parents’ parentage, signing declarations in
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support of the said complaint and/or petition for judgment to establish their parentage,
signing a stipulation to establish Intended Parents as the legal parents of the Child, and/or
by signing any and all other pleadings or documents reasonably necessary or convenient to
establish Intended Parents’ rights as the sole and exclusive legal parents to the Child.
(c) The Surrogate agrees in a timely manner to confirm in writing the Intended
Parents’ parentage, and the lack of the Surrogate’s maternity and the lack of paternity of
anyone other than Intended Father, after the pregnancy has been verified by, without
limitation, signing a verified answer to Intended Parents’ complaint and/or petition for
judgment to establish parentage, signing declarations in support of Intended Parent’s
complaint and/or petition for judgment to establish their parentage, signing a stipulation to
establish Intended Parents as the legal parents of the Child, and/or by signing any and all
other pleadings or documents reasonably necessary or convenient to establish Intended
Parent’s rights as the sole and exclusive legal parents to the Child.
(d) It is the responsibility of each Party to this Agreement to timely further facilitate
the procedural aspects of establishing the parental rights of Intended Parents and
terminating any parental rights of the Surrogate by, among other things, obtaining birth
certificate(s), citizenship documents, and/or any other documentation which may be
requested by any medical provider, governmental agency. Intended Parents shall pay the
cost of obtaining any of the said documentation.
(V) COMPENSATION AND PAYMENT OF EXPENSES

(a) The Intended Parents agree to pay such sums as are indicated herein and
incorporated by this reference.
(b) The Surrogate agrees to present to Intended Parents, proper evidence,
documentation, or verifiable information that the Surrogate has incurred or will incur the
following kinds of expenses directly relating to the pregnancy and the birth of the Child,
as described herein, which the Intended Parents shall pay forthwith: obstetrical, nursing,
hospital and maternity care, pharmaceuticals, and paediatric care, or other medical costs
payable under this Agreement by the Intended Parents. The names of the Intended Parents
and not the name of the Surrogate will be mentioned on all the medical bills/medical tests
conducted on the Surrogate.
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(c) Except as expressly provided herein, the Intended Parents shall not be
responsible for lost wages of the Surrogate, child care expenses of the Surrogate,
transportation expenses incurred by the Surrogate, or any other expenses resulting from
the performance of this Agreement, except as specifically provided in this Agreement. The
consideration paid to the Surrogate pursuant to this Agreement is intended to compensate
the Surrogate for the foregoing and any discomfort, pain, suffering and inconvenience
experienced by the Surrogate and her family, and as part of the Intended Parents’ duty to
support the unborn child.
(d) Payment Schedule:
The Surrogate shall be paid the sum of Rs………………………..as support for
the unborn child and consideration to compensate her for her pain and suffering and the
inconvenience incurred to her and her family, which shall be paid in the following
manner:
(i) Rs…………………..per month for……….months (including two months after
delivery), being the diet money will be paid by the Intended Parents to the Surrogate over
and above the amount of Rs……………….which amount is to be spent by the Surrogate
only on the healthy food including fruits/vegetables/clean drinking water to be consumed
by her. The said monthly sum will be payable by the Intended Parents to the Surrogate
only till the delivery of the Child. However, in the event the pregnancy is not confirmed
after all the three attempts as mentioned in paragraph 5 above, the agreement will be
terminated and the amount as given to the Surrogate as on that date will be kept by the
Surrogate. However, it is clarified that in this event no further payment will be made by
the Intending Parents to the Surrogate. It is clarified that this amount will not be included
in computing the total consideration of Rs……………………..Lacs.
(ii) A one-time payment of Rs…………………… (Rupees………………….only) at
the time of embryo transfer to the Surrogate.
(iii) A one-time payment of Rs…………………… (Rupees………………….only)
at the time of report thereby confirming pregnancy (between 3 weeks – 8 weeks).
(iv) A one-time payment of Rs…………………… (Rupees………………….) after
completion of 6 months pregnancy.
(v) A one-time payment of Rs…………………… (Rupees………………….) at the
time of admission of the Surrogate for delivery.
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(vi) A one-time payment of Rs…………………… (Rupees………………….only)

after the custody of the child is given by the Surrogate to the Intended Parents.
(e) In the event the pregnancy is not confirmed after all the three attempts as
mentioned in paragraph 5 above, the agreement shall be terminated and the amount as
given to the Surrogate as on that date will be kept by the Surrogate. However, it is
clarified that in this event no further payment will be made by the Intending Parents to the
Surrogate.
(W) DEATH OR DIVORCE OF INTENDED PARENTS

(a) In the event of the death of the Intended Mother prior to the birth of the Child,
all of the obligations of the Surrogate shall be of equal forms and effect notwithstanding
such event. The said death shall not alter any terms of the Agreement, nor shall it in any
way affect the responsibilities of the Parties to effectuate the terms of this Agreement. The
Child shall be placed in the custody of Intended Father pursuant to this Agreement, and
Surrogate shall relinquish all parental rights of the Child in favour of the Intended Father.
(b) In the event of the death of the Intended Father prior to the birth of the Child,
all of the obligations of the Surrogate shall be of equal forms and effect notwithstanding
such event. The said death shall not alter any terms of the Agreement, nor shall it in any
way affect the responsibilities of the Parties to effectuate the terms of this Agreement. The
Child shall be placed in the custody of Intended Mother pursuant to this Agreement, and
Surrogate shall relinquish all parental rights of the Child in favour of the Intended Mother.
(c) In the event of death of both Intended Parents prior to the birth of the Child,
the Surrogate shall be entitled to the performance of all terms and conditions contained in
this Agreement, notwithstanding such event. The Child shall in such event be placed in the
custody of………………………..the guardian hereby appointed by Intended Parents, and
the Intended Parents shall have arranged for the support, care and custody of the Child by
the said guardian.
(d) In the event of separation or divorce (dissolution of marriage) of the Intended

Parents, the Surrogate shall not be entitled to any parental rights to the Child. The
custodial rights to the Child, in the event of the divorce of the Intended Parents, shall be
determined by the Intended Parents or by a Court of competent jurisdiction, vis-à-vis
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Intended Father and Intended Mother; however, the Surrogate shall not have any custodial
or visitation rights to the Child.
(X) MODIFICATION/AMENDMENTS
This Agreement shall be amended/ modified only by a written agreement signed
by all Parties.
(Y) BREACH OF AGREEMENT

In the event that any Party materially violates any of the provisions contained herein
without legal excuse, such violation shall constitute a material breach, and in addition to
all other remedies available at law or equity, this Agreement may be terminated forthwith
at the option of the aggrieved party without further liability on the part of the aggrieved
non-breaching party. However, no breach or material breach of this Agreement by the
Intended Parents shall affect the rights or obligations of the Intended Parents with respect
to any Child and the Surrogate’s waiver and relinquishment of all parental or other rights
with respect to any Child. In the event that the Intended Parents terminate this Agreement
pursuant to this paragraph, the Intended Parents shall be under no obligation to pay any
monies to the Surrogate or reimburse any of her expenses incurred. In addition, the
Surrogate must reimburse the Intended Parents for all sums expended pursuant to this
Agreement, plus interest at the maximum allowable rate at the time the breach was
discovered, and the Intended Parents shall have all other available remedies, both in law
and in equity.
Signature:
….…………………………..… (Surrogate)
………………………………... (Husband of Surrogate)
………………………………… (Intending Mother)
………………………………… (Intending Father)
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Witnesses:
1…………………………………………………
2…………………………………………………
Parties have put their signatures/thumb impressions on this agreement

on………………………….. this day of………………… year………………… in the
presence of two witnesses above mentioned, who have signed in the presence of each
other.
In order to bind the parties to the surrogacy legally, it is also felt essential that the
affidavit of surrogate, authorization by the surrogate, consent of the surrogate’s husband in
the form of affidavit should also be taken. The forms of models for such
affidavits/declaration are drafted as follows:
7.3 AFFIDAVIT OF THE SURROAGATE
AFFIDAVIT OF THE SURROAGATE

I,………………………………………deponent W/o Shri………………..…….resident
of………………………………………………………
(Permanent Address)…………………………..., presently resident
of……………………..do hereby solemnly affirm and state as under:
1. That I state that I, deponent…………………………….. have gone through and
understand the foregoing Surrogate Agreement dated…………………………… I am
entering into this Agreement on my own sweet will without any undue pressure or
coercion.
2. That I have agreed to carry and give birth to a child conceived via in-vitro
fertilization, so that Shri……………………………….. and Smt…………….………
(Intended Parents) may have a child genetically related to them. I have no intention of
having physical or legal custody or any parental rights or duties with respect to any child
born of this gestational surrogacy process. Rather, it is my intention that the genetic and
intended parents shall exclusively have such custody and all parental rights and duties.
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3. I further acknowledge that it is in the best interests of the child born of this
surrogacy process. Rather, it in my intention that the genetic and intended parents shall
exclusively have such custody and all parental rights and duties.
4. The contents of this affidavit have been explained to me in Hindi/English/local
language and I undertake to abide by the terms of the affidavit.
DEPONENT
(SURROGATE)
VERIFICATION
Verified that the contents of paragraphs 1 to 4 of the above affidavit are true and
correct to the best of my knowledge and belief and nothing material has been concealed
therefrom.
DEPONENT
(SURROGATE)
7.4 CONSENT AFFIDAVIT OF SURROGATE’S HUSBAND

CONSENT AFFIDAVIT OF SURROGATE’S HUSBAND
I, deponent……………………………..….…..S/o………………………………….aged
about………..years, r/o…………………….............................………. (permanent address:
……………………………………………………………………...) presently at/resident
of ……………………………………………………. do hereby solemnly affirm and state
as under:
1. That the deponent has read and been explained the foregoing Surrogacy
Agreement dated…………………. and the present affidavit in Hindi/English/local
language. The deponent is the husband of the surrogate.
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2. That the deponent further acknowledges that he is in full agreement with the
objectives of the Agreement and fully support the terms and provisions thereof. I hereby
agree to cooperate with and assist my wife in fulfilling her obligations under said
Agreement.
3. That the deponent understands that I shall at no time attempt to assert any pressure
on his wife and that it is intended that Shri……………………………… and
Smt……………………………are the intended and genetic parents of the child, shall
exclusively have full physical and legal custody and all parental rights. The deponent shall
cooperate fully in allowing the biological parents to bond with and take custody of the
child.
DEPONENT
(SURROGATE’S HUSBAND)
VERIFICATION
Verified that the contents of paragraphs 1 to 3 of the above affidavit are true and
correct to the best of my knowledge and belief and nothing material has been concealed
therefrom.
Verified at…………………………. on this ……………… day of………………….
DEPONENT
(SURROGATE’S HUSBAND)
7.5 AUTHORIZATION BY THE SURROGATE
AUTHORIZATION BY THE SURROGATE
To Whom So Ever It May Concern
This is to certify that I, surrogate Smt……………………………………………………

W/o…………………………resident of………………………..………………………..
(Permanent Address………………………………………….), declare as under: -
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1) That I am doing surrogacy at my own wish at ………………………..…… Centre For

Ms………………………………………………
2) That my caretaker ……………………. is responsible for my well-being throughout
pregnancy including my diet, medication, USG’s, tests etc.
3) That I have no objection if she…………..…………………… accepts all payments and
medication on my behalf. I promise to abide by all rules & regulations of surrogacy
including payments. I promise to take care of myself and my baby during 9 months of
pregnancy.
Signature of the Surrogate…………………………
Signature of the Caretaker…………………………
7.6 SUGGESTIONS:
After careful analysis of result of this research and after studying the lacunae in the
ICMR Guidelines, 2005, the ART (Regulation) Bill, 2008, Law Commission of India 228 th
Report, ART (Regulation) Bill, 2010 and ART (Regulation) Bill, 2013, following
suggestions are made:
1) Life exists because of power of procreation. In the absence of this power,
surrogacy is supreme saviour which should be regulated and controlled by law.
2) Because there is absence of law on the vital issue of surrogacy, hence surrogacy
should be regulated and controlled by a new legislation.
3) Surrogacy should be regulated by law whereas commercialization of surrogacy
should be banned.
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4) Maternity leave and child care leave should be sanctioned to a surrogate mother if
she is in Government job.
5) Lesbian, Gay and Transgender couples should not be allowed the benefit of
surrogacy.
6) Sex selective surrogacy should be prohibited.
7) Single, Unmarried person should not be allowed the benefit of surrogacy.
8) Only infertile married couple should be allowed to have the benefit of surrogacy
arrangement.
9) In order to bind the parties to the surrogacy, there is no mention of any surrogacy
agreement in the proposed Bills and Law Commission Report. Hence, it is
suggested that a Model Surrogacy Agreement should be there for the guidance of
the parties to the surrogacy so that victimization of parties may be avoided. A
Model Surrogacy Agreement is thus drafted as Annexure – ‘A’ to the draft
Surrogacy Arrangement (Regulation and Control) Bill, 2015.8
10) In the draft ART (Regulation) Bill, 2010, ‘surrogacy agreement’ is defined as a
contract between the person(s) availing of assisted reproductive technology and the
surrogate mother. It is suggested that surrogacy agreement should also be signed
by the husband of the surrogate, so that his consent may be affixed for all the terms
and conditions of the agreement besides his separate consent letter. Thus, the
definition of surrogacy agreement needs to be widened and re-defined.
11) Some of the terms from Code of Criminal Procedure, 1973 and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [Act 57 of 1994],
are used in the draft Bill but those terms have not been defined in the draft Bill.
Thus, following definition is to be added in the new Bill:
“words and expressions used herein and not defined but defined in the
Code of Criminal Procedure, 1973 and Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [Act 57 of
1994] shall have the meaning respectively assigned to them in those Acts.”
12) In clause 37 of the draft ART (Regulation) Bill, 2010, no amount of fine is
mentioned for contravention of provisions of this clause. Thus, it is suggested that
any person who contravenes provisions of this clause shall be punishable with
8
See 7.2 Model Draft Surrogacy Agreement, Chapter-VII.
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imprisonment for a term which may extend to five years and with fine which may
extend to ten thousand rupees.
13) In clause 38 (1) of the draft ART (Regulation) Bill, 2010, the amount of fine for
offences under the Act for the first and subsequent conviction is not mentioned.
Thus, it is proposed that whoever contravenes any of the provisions of this Act or
rules made thereunder, shall be punishable with imprisonment for a term which
may extend to three years and / or fine which may extend to twenty five thousand
rupees, and on any subsequent conviction with imprisonment which may extend to
five years and / or fine which may extend to fifty thousand rupees.
14) In clause 38 (3) of the draft ART (Regulation) Bill, 2010, the long title of Act No.
57 of 1994 is mentioned as “Pre-natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994. Whereas the name of this Act was substituted by
Amendment Act of 2003. It is suggested that the new name of the Act, i.e., Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 should be replaced.
15) In clause 38 (3) of the draft ART (Regulation) Bill, 2010, the amount of fine for
first and subsequent convictions for violation of Pre-Conception and Pre-Natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 is not given. Thus,
it is suggested that any person who seeks the aid of assisted reproductive
technology or of a medical geneticist, gynaecologist or registered medical
practitioner for conducting pre-natal diagnostic techniques on any pregnant woman
for purposes other than those specified in clause (2) of section 4 of the Pre-
Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 [Act 57 of 1994], shall be punishable with imprisonment for a term
which may extend to three years and with fine which may extend to twenty five
thousand rupees, and on any subsequent conviction with imprisonment which may
extend to five years and with fine which may extend to fifty thousand rupees.
16) Similarly, in clause 38 (4) of the draft ART (Regulation) Bill, 2010, the amount of
fine is not given. Thus, it is suggested that the transfer of a human embryo into a
male person or into an animal that is not of the human species shall be an offence
under this Act and shall be punishable with imprisonment for a term which may
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extend to three years and with fine which may extend to twenty five thousand
rupees.
fine is not given. Thus, it is suggested that the sale of any embryo for research is
absolutely prohibited and shall be an offence under this Act punishable by
imprisonment for a term which may extend to three years and with fine which may
extend to twenty five thousand rupees.
fine is not given. Thus, it is suggested that the use of individual brokers or paid
intermediaries to obtain gamete donors or surrogates shall be an offence under this
Act, punishable by imprisonment for a term which may extend to three years and
fine which may extend to twenty five thousand rupees.
19) Similarly, in clause 40 of the draft ART (Regulation) Bill, 2010, the amount of fine
for the first offence and for continuing contravention of this clause is not given for
cases for which no specific punishment is provided for contravention of provisions
of the Act or Rules. Thus, it is suggested that whoever contravenes any of the
provisions of this Act or any rules made thereunder, for which no penalty has been
elsewhere provided in this Act, shall be punishable with imprisonment for a term
which may extend to three years, or with fine which may extend to twenty five
thousand rupees., or with both, and in the case of continuing contravention, with an
additional fine which may extend to ten thousand rupees per week.
20) Every offence under this Bill is declared to be a cognizable offence. It is submitted
that all offences under the Bill should be made cognizable, non-bailable as well as
compoundable. Thus, the language of clause 42 needs amendment as follows:
“42. Offences to be Cognizable, Non-Bailable and Non-Compoundable
– Every offence under this Act shall be cognizable, non-bailable and non-
compoundable.”
21) In the draft ART (Regulation) Bill, 2010, nothing is mentioned about the trial of
offences and the courts which will try the offenders. The result of the research
indicates that there is a dire need of creation of surrogacy courts in India. thus, it is
suggested that a new clause 42 A should be added in the Bill which is as follows:
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“42 A. Trial of Offences by Special Surrogacy Courts – Every offence

under this Act shall be triable by Court of Sessions. The Central or the
State Government, may constitute such number of Court of Sessions for
each district, as it may deemed fit. One Sessions Court may be designated
for more than one district for working as ‘Surrogacy Court’.”
22) In order to bind the parties to the surrogacy agreement, it is essential that parties
should enter into a detailed agreement. Such a detailed agreement is drafted in this
work as Annexure – ‘A’ to Surrogacy Arrangement (Regulation and Control) Bill,
20159. Parties to the surrogacy arrangement can have their own agreement but they
have an option to adopt the model surrogacy agreement, given hereinbefore as
Annexure – ‘A’. If the parties do not adopt their own agreement, they will be
bound by the model surrogacy agreement as given in Annexure – ‘A’. For this a
new clause 51 should be added in the draft Bill as follows:
“51. Model Surrogacy Agreement – All the parties to the surrogacy
arrangement shall enter into a written agreement of their own before
entering into a surrogacy arrangement failing which they will have to
undergo an agreement in the model form given hereinafter as Annexure –
‘A’.”
23) In the new draft Surrogacy Arrangement (Regulation and Control) Bill, 2015 a
provision has been made that a child born out of a surrogate will be the legitimate
child of the commissioning parents, but under Indian Evidence Act, 1872, no such
presumption can be drawn that a child born out of a surrogate mother will be the
legitimate child of the commissioning parents, so as to have a legal right to
parental support, inheritance and other privileges of a child born to a couple
through their sexual intercourse. Thus, it is suggested that Indian Evidence Act,
1872 should be suitably amended to provide such a presumption in the following
words:
“Section 112 A: Birth of a Child out of Surrogacy Arrangement: The court
shall presume that any person born out of surrogacy arrangement between a
surrogate mother and commissioning parents shall be the legitimate child
of the commissioning parents.”
9
See 7.2 Model Draft Surrogacy Agreement, Chapter-VII.
Page | 75
Page | 76

Surrogacy Chapter 7

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“Law and Policy on Surrogacy: A Socio-Legal Study in India” 2015

reproductive technologies services and for matters connected therewith or incidental

PUNCTUATION AND ILLUSTRATIONS

DEFINITIONS ARE SUBJECT TO CONTRARY CONTEXT

DISTINCTION BETWEEN PROVISO, EXCEPTION AND SAVING CLAUSE

7.1 The Surrogacy Arrangement (Regulation and Control) Bill,

The Surrogacy Arrangement (Regulation and Control) Bill, 2015

16. Renewal, suspension or revocation of registration

51. Model Surrogacy Agreement

With the enormous advances in medicine and medical technologies, today 85

STATEMENT OF OBJECTS AND REASONS

An act to provide for a national framework for the accreditations, regulation,

THE SURROGACY ARRANGEMENT (REGULATION AND CONTROL) ACT, 2015

1. Short title, extent and commencement –

a. “ART bank”, means an organization that is set up to supply sperm / semen,

b. “artificial insemination”, means the procedure of artificially transferring

c. “assisted reproductive technology” (ART), with its grammatical variations

d. “assisted reproductive technology clinic”, means any premises used for

e. “biological parent(s)”, means genetic parent(s);

g. “Commissioning parents/couples/individuals”, means parents, couples or

h. “couple”, means two persons living together and having a sexual

i. “cryo-preservation”, means the freezing and storing of gametes, zygotes

j. “Department of Health Research”, means Department of Health Research,

l. “egg”, means the female gamete (that is, oocyte)

o. “foetal reduction”, means reduction in the number of foetuses in the case of

p. “foetus”, means the product of conception, starting from completion of

q. “gamete", means sperm and oocyte (that is egg);

s. “Indian Council of Medical Research”, means the Indian Council of

t. “implantation”, means the attachment and subsequent penetration by the

u. “infertility”, means the inability to conceive after at least one year of

v. “married couple”, means two persons whose marriage is legal in the

x. “patient(s)”, means an individual / couple who comes to an infertility clinic

y. “Pre-implantation Genetic Diagnosis”, includes the technique in which an

aa. “surrogacy”, means an arrangement in which a woman agrees to a

bb. “surrogate mother”, means a woman who is a citizen of India and is

cc. “surrogacy agreement”, means a contract between the person(s) availing of

3. Establishment of National Advisory Board –

4. Meetings of National Advisory Board –

5. Functions of National Advisory Board –

6. Establishment of State Boards –

7. Meetings of State Boards –

8. Powers and functions of State Boards –

(2) Without prejudice to the generality of the provisions contained in subsection

(d) constitute advisory committees consisting of experts in the field of assisted

9. Term of office, conditions of service, etc., of Chairperson and other members of

10. Procedure of State Boards –

11. Constitution and functions of the Registration Authority –

12. Proceedings before State Boards to be judicial proceedings –

13. Registration and accreditation of clinics –

(a) infertility treatment, including Intra-Uterine Insemination (IUI), Artificial Insemination

14. Who may apply for registration –

15. Grant of registration –

16. Renewal, suspension or revocation of registration –

18. Applicability to ART banks and research organizations – The provisions of

19. Appeal to the State Board –

DUTIES OF AN ASSISTED REPRODUCTIVE TECHNOLOGY CLINIC

20. General duties of assisted reproductive technology clinics –

(2) It shall be the responsibility of an assisted reproductive technology clinic to obtain,

(6) Assisted reproductive technology clinics shall provide professional counseling to

(11) Assisted reproductive technology clinics shall provide to couples or individuals, as

(14) No assisted reproductive technology procedure shall be performed on a woman below

24. Pre-implantation Genetic Diagnosis –