38. Prohibition of commercial surrogacy, exploitation of surrogate mothers and children
born through surrogacy.— (1) No person, organisation, surrogacy clinic, laboratory or clinical
establishment of any kind shall.—
(a) undertake commercial surrogacy, provide commercial surrogacy 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
for 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;
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(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, a racket or
an organisation for selling, purchasing or trading in human embryos or gametes for the purpose of
surrogacy;
(f) import or shall help in getting imported in, whatsoever manner, the human embryo or human
gametes for surrogacy or for surrogacy procedures; and
(g) conduct sex selection in any form for surrogacy.
(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), contraventions of
the provisions of clauses (a) to (g) of sub-section (1) by any person shall be an offence punishable
with imprisonment for a term which may extend to ten years and with fine which may extend to ten
lakh rupees.
(3) For the purposes of this section, the expression “advertisement” includes any notice, circular,
label, wrapper or any other document including advertisement through internet or any other media, in
electronic or print form and also includes any visible representation made by means of any hoarding,
wall-painting, signal light, sound, smoke or gas.
39. Punishment for contravention of provisions of Act.— (1) Any registered medical
practitioner, gynaecologists, paediatrician, embryologists or any person who owns a surrogacy clinic
or employed with such a clinic or centre or laboratory and renders his professional or technical
services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and
who contravenes any of the provisions of this Act (other than the provisions referred to in section 38)
and rules and regulations made thereunder shall be punishable with imprisonment for a term which
may extend to five years and with fine which may extend to ten lakh rupees.
(2) In case of subsequent or continuation of the offence referred to in sub-section (1), the name of
the registered medical practitioner shall be reported by the appropriate authority to the State Medical
Council concerned for taking necessary action including suspension of registration for a period of five
years.
40. Punishment for not following altruistic surrogacy.—Any intending couple or intending
woman or any person who seeks the aid of any surrogacy clinic, laboratory or of a registered medical
practitioner, gynaecologist, paediatrician, embryologist or any other person for not following the
altruistic surrogacy or for conducting surrogacy procedures for commercial purposes shall be
punishable with imprisonment for a term which may extend to five years and with fine which may
extend to five lakh rupees for the first offence and for any subsequent offence with imprisonment
which may extend to ten years and with fine which may extend to ten lakh rupees.
41. Penalty for contravention of provisions of Act or rules for which no specific punishment
is provided.—Whoever contravenes any of the provisions of this Act, rules or regulations made
thereunder for which no penalty has been provided in this Act, shall be punishable with imprisonment
for a term which may extend to three years and with fine which may extend to five lakh rupees and in
the case of continuing contravention with an additional fine which may extend to ten thousand rupees
for every day during which such contravention continues after conviction for the first such
contravention.
42. Presumption in the case of surrogacy.— Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872), the court shall presume, unless the contrary is proved, that the
women or surrogate mother was compelled by her husband, the intending couple or any other relative,
as the case may be, to render surrogacy services, procedures or to donate gametes for the purpose
other than those specified in clause (ii) of section 4 and such person shall be liable for abetment of
such offence under section 40 and shall be punishable for the offence specified under that section.
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43. Offence to be cognizable, non-baliable and non-compoundable.— Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act
shall be cognizable, non-bailable and non-compoundable.
44. Cognizance of offences.— (1) No court shall take cognizance of any offence punishable under
this Act except on a complaint in writing made by--
(a) the appropriate authority concerned, or any officer or an agency authorised in this behalf by the
Central Government or the State Government, as the case may be, or the appropriate authority; or
(b) a person including a social organisation who has given notice of not less that fifteen days in the
manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a
complaint to the court.
(2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class
shall try any offence punishable under this Act.
45. Certain provisions of Code of Criminal Procedure, 1973 not to apply.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXI A of the said
Code relating to plea bargaining shall not apply to the offences under this Act.