Surrogacy in Nepal (2080) – All the related legal provisions

This article will help you to know all about the law relating to surrogacy in Nepal.

As absurd as it sounds, from an evolutionary perspective the meaning of human life is associated with gene propagation; the creation of babies. Respecting individuals’ differences and personal choices, marriage is such an institution that legally allows one to have a child.

However, there may be complications due to a woman’s illness, inability to give birth, sexual impotency of either partner, or any other health reasons. For such couples, the only way of having a child is either through legal adoption or a miracle of reproductive science (surrogacy).

Surrogacy is a fertility treatment in which a woman carries and delivers pregnancy for another couple. It is an arrangement, often supported by legal agreement, to bear a child for another person or person(s). It is a method of assisted reproduction that helps intended parents start or grow families when they can’t do so on their own.

Britannica Encyclopedia defines surrogate motherhood as a practice in which a woman (the surrogate mother) bears a child for a couple unable to produce children in the usual way, usually because the wife is infertile or otherwise unable to undergo pregnancy.

Types of Surrogacy

Based on procedure

1. Traditional Surrogacy:  the surrogate mother is impregnated through artificial insemination with the sperm of the husband.
2. Gestational surrogacy:  the wife’s ova and the husband’s sperm are subjected to in vitro fertilization, and the resulting embryo is implanted in the surrogate mother.

Based on purpose

1. Altruistic Surrogacy: women agree to hold the baby in their womb for social service
2. Commercial Surrogacy: is done for commercial benefit and it has been banned in most countries.

It is to be noted that surrogacy is not a right but only a last resort for –

1. A heterosexual couple who have struggled with fertility
2. Intended mothers who are unable to carry a child
3. Intended parents who have a genetic defect or health condition they don’t want to pass onto the child
4. Same-sex parents who want to have a genetic link to the baby

Also Read: Divorce Process in Nepal

Only surrogacy that is done for welfare purposes, consensual and non-commercial is legally accepted. Nowhere in the world is surrogacy allowed for commercial purposes as it involves matters of the surrogate mother’s reproductive health and rights, ethics and morality attached to it, and matters of its exploitation. The sensitivity of surrogacy is so much so that it has been legally authorized only in a few countries and only for non-commercial purposes with proper regulatory mechanisms.

Law Relating to Surrogacy in Nepal

In the case of Nepal, surrogacy services have been banned since 2015. As of now, there are no laws to deal with surrogacy issues.

Two writ petitions had been filed in relation to the commercialization of surrogacy in 2072 namely Pushpa Raj Pandey v Office of Prime Minister, Ministry of Health and Population including others (writ no. 072-WO-0119) and Prabin Pandak v Office of Prime Minister and others ( writ no. 072-WO-0120 ). The writs were filed to declare the cabinet’s decision of 2071/6/2 void which allowed hospitals to practice surrogacy based on National Health Policy 2071 policy no 12 (as per which fertility shall be managed by the surrogacy-related laws ). In absence of proper law and mechanisms, it would have negative effects on women’s reproductive rights leading to violence, exploitation, and trafficking.

Supreme Court gave interim order not to execute the decision made by the cabinet until the final order. Since surrogacy raises a number of legal questions, it may not be practiced without determining such questions and hence ordered the hospitals to ban the service of surrogacy.

Soon after the interim order, Cabinet declared its earlier decision allowing surrogacy void.

In the final decision, Supreme Court  gave a directive order to the concerned authority to make an appropriate law to regulate surrogacy in Nepal considering the following fact :

1. Completely ban commercial surrogacy since a mother’s womb can never be commercialized.
2. If a Nepali married couple has been certified by a medical board that they are incapable of producing children because of infertility or other health conditions, they should be allowed.
3. Same-sex couples or single men and women shall not be allowed to practice surrogacy
4. Foreigners are not to be allowed to practice surrogacy in Nepal
5. The mutual consent of the intended married couple and surrogate is required
6. Only for altruistic and non-commercial purposes
7. Criteria for surrogate mother
8. Service to be provided by health institutions that fulfill criteria as prescribed by the law upon taking consent of the such authority
9. Both the intended couple or surrogate has to apply to the concerned authority first
10. Determination of legal rights and duties of legal parents
11. Determination of rights and duties of surrogate mother
12. Clarity on registration of birth and other events
13. Provision of institutions for supervision, monitoring, and inspection of whether laws have complied with or not

Despite the directive order, no efforts have been made in regard to surrogacy. This reflects the reluctance of parliament in this matter.