Surrogacy: Offences, and the Rights Question

In one line

The Act punishes the trade severely, presumes the surrogate was compelled, and is criticised for protecting her by taking away her choice.

In the wording a student can write in an exam: the offences are graded in three tiers, commercial surrogacy and exploitation under section 38, punishable with up to ten years and ten lakh rupees; contravention by clinics and practitioners under section 39, up to five years and ten lakh rupees; and failure to follow altruistic surrogacy by the intending couple or woman under section 40; section 42 requires the court to presume compulsion of the surrogate; and section 43 makes every offence cognizable, non-bailable and non-compoundable.

Section 38: the central prohibition

Section 38(1): no person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall:

• (a) undertake commercial surrogacy, provide it or its related component procedures or services in any form, or run a racket or an organised group to empanel or select surrogate mothers, or use individual brokers or intermediaries to arrange for surrogate mothers and surrogacy procedures, at such clinics, laboratories or at any other place;
• (b) issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding commercial surrogacy by any means whatsoever, scientific or otherwise;
• (c) abandon or disown or exploit, or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy;
• (d) exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner whatsoever;
• (e) sell human embryo or gametes for the purpose of surrogacy, and run an agency, racket or organisation for selling, purchasing or trading in them for that purpose;
• (f) import or help in getting imported, in whatsoever manner, human embryos or gametes for surrogacy; and
• (g) conduct sex selection in any form for surrogacy.

Section 38(2): notwithstanding the Indian Penal Code, contravention of clauses (a) to (g) by any person is punishable with imprisonment which may extend to ten years and fine which may extend to ten lakh rupees.

Section 38(3) defines advertisement for this section as including any notice, circular, label, wrapper or other document, including advertisement through internet or any other media, in electronic or print form, and any visible representation made by means of any hoarding, wall-painting, signal light, sound, smoke or gas.

That definition is worth quoting in an answer. "Signal light, sound, smoke or gas" is drafting of a deliberately exhaustive kind, and it tells you what the legislature expected the practice to do when the obvious channels were closed.