Context: Recently, the Surrogacy (Regulation) Bill, 2019 was passed in the Lok Sabha.
- Surrogacy is the practice whereby one woman carries the child for another with the intention that the child should be handed over after birth. Such a surrogacy arrangement may be altruistic or commercial in nature.
- The government introduced the Surrogacy (Regulation) Bill, 2016 in the Parliament, which was then examined by the standing committee.
- After the dissolution of last Lok Sabha, the bill lapsed and now this bill was brought to replace it.
Provisions of the Bill
- Prohibition of Commercial Surrogacy- which includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
- It also prohibits surrogacy for producing children for sale, prostitution or other forms of exploitation.
- But the bill allows Altruistic Surrogacy, where no such other monetary compensation is paid to the surrogate mother.
- Other purposes where surrogacy is allowed- include for intending couples who suffer from proven infertility, for any condition or disease specified through regulations.
More about Surrogacy
- Altruistic surrogacy– where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy.
- Commercial surrogacy– here compensation (in cash or kind) paid to the surrogate mother, which exceeds the reasonable medical expenses associated with the pregnancy.
- India has emerged as a surrogacy hub for couples from other countries and there have been reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets involving intermediaries importing human embryos and gametes.
- A study conducted in July 2012 put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.
- The 228th report of the Commission of India had recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.
- According to a Centre for Social Research (CSR), the reason for driving the mothers to surrogacy is usually poverty and lack of education, which further ensures their inability to challenge the exploitation.
Recent judgment on the status of transgender
- In 2014, the Supreme Court in NALSA vs Union of India ruled that transgender people should be recognized as a third gender and enjoy all fundamental rights, while also being entitled to specific benefits in education and employment.
- In 2018, in a historic decision upholding privacy and non-discrimination of LGBT persons, the Supreme Court struck down the colonial-era law that criminalized consensual same-sex relations.
- Recently, Madras High Court ruled that the term “bride” under the Hindu Marriage Act, 1955 includes transwomen. Further, it directed the authorities to register a marriage between a man and a transgender woman.
- Lays out various eligibility criteria For an intending couple- who should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
- The certificate of essentiality will be issued on grounds like proven infertility of one or both parents, order of parentage of the child passed by a Magistrate’s court and insurance coverage
The eligibility criteria for the couple include-
- Couple being Indian citizens and married for at least five years,
- Aged between 23 to 50 years old (wife) and 26 to 55 years old (husband),
- Do not have any surviving child (biological, adopted or surrogate),
- Would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness.
For surrogate mother- who should be a –
- Close relative of the intending couple,
- Married woman having a child of her own,
- 25 to 35 years old
- Surrogate only once in her lifetime
- Possess a certificate of medical and psychological fitness for surrogacy.
- Establishment of Authorities– Both the central and state governments shall appoint one or more appropriate authorities, including the National and State Surrogacy Boards, within 90 days of the Bill becoming an Act. Apart from the regulation of surrogacy clinics, they will enforce standards, investigate any breach of the provisions of the Bill and recommend modifications to the rules and regulations.
- Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971. Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
- The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
Issues with the bill
- Leaves a lot of stakeholders- including unmarried couples who want to have a baby through surrogacy, gay couples and single men and women.
- The decision to keep live-in partners out of the purview of the Bill is indicative of the fact that the Bill is not in consonance with the present-day modern social milieu. Even the Supreme Court has given a legal sanctity to live-in relationships.
- Lack of clarity on altruistic surrogacy- It only allows a “close relative” of the married couple to undertake “altruistic surrogacy”, but it does not define the term “close relatives”.
- The Parliamentary Standing Committee observed that the definition of ‘altruistic’ surrogacy, cannot work in a patriarchal structure. The surrogate is likely to be coerced and will get nothing out of this arrangement, reinforcing the idea that a woman’s body is not her own.
- It drew attention towards the dynamic structure of Indian society wherein the decision-making power rarely rests with women and not so privileged or financially weak relatives who can be coerced into becoming surrogate mothers and the chances of coercion and exploitation are even more in case of close relatives, due to family pressures.
- Altruistic surrogacy has failed in other countries and has resulted in various other forms of assistance being given, though money may not be paid.
- Banning commercial surrogacy may not be the solution. A total ban on commercial surrogacy may push the industry underground and render surrogate mothers even more vulnerable.
- Further efforts should have been focussed on addressing the concerns of exploitation not banning the source of livelihood for many poor women. Focus should have been to improve her work conditions, make the process safe and secure for her, improve the terms of her contract for her.
- India is one of the biggest centres of Surrogacy in the world which requires a well-defined legal system governing the process for the protection of the surrogate mother, the child thus born and also of the rights of the parents involved.
- Provisions will prevent exploitation– of surrogate mothers and children born through surrogacy. A vast majority of surrogates are poor or illiterate women who may have only a weak grasp of their contractual rights.
- Keeps the health of the mother a top priority– by capping the surrogacy to only once in her lifetime as surrogacy cannot be a way out for women opting for surrogacy due to poverty and should not be allowed as a profession.