The Bill to regulate surrogacy: An analysis

The news

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha in November, 2016. The cabinet approved the Bill, however, has not been passed yet.

It was recently in news when well known film director and producer, Mr. Karan Johar announced the birth of twins using surrogacy. Notably, Mr. Johar is a single parent. Under the new Bill, single parents are not eligible for availing the services of surrogacy. Mr. Johar could avail it because the Bill is not yet a law.

In this piece, we are examining certain provisions of the Bill.

Read another detailed article on surrogacy here.

What is surrogacy?

When a couple wants a baby but is unable to have a child because either or both partners are medically unfit to conceive, another woman is artificially inseminated with the sperm of the father. She then carries the child full term and delivers it for the couple.

In such a case, the surrogate mother is the biological mother of the child. This is biological surrogacy.

Another type of surrogacy is gestational surrogacy, wherein eggs from the mother are fertilized with the father’s sperm and then the embryo is placed into the uterus of the surrogate, who carries the child to term and delivers it. In this case, the biological mother is still the woman whose eggs are used, while the surrogate is called the birth mother.

Why people opt for surrogacy?

Couples opt for surrogacy when traditional means of conceiving a child have failed, this also includes in-vitro fertilization, or it is dangerous for the couple to get pregnant and give birth. The following medical conditions usually necessitate surrogacy:

  • Malformation of or infection in the womb
  • Absence or removal of womb by hysterectomy
  • Recurring miscarriages
  • Repeated failure of IVF
  • Other conditions that make impossibly or risky for a woman, such as severe heart disease

Other than these medical conditions, single parents and same sex couples can have a child only through surrogacy. (Please note that under the Surrogacy (Regulation) Bill, 2016, these categories of people are not permitted to avail surrogacy).

Provisions of the Surrogacy (Regulation) Bill, 2016 approved by Union Cabinet:
  • According to the Bill, only Indian couples, who have been married for atleast 5 years can opt for surrogacy, provided at least one of them have been proven to have fertility-related issues.
  • Only close relatives, not necessarily related by blood, will be able to offer altruistic surrogacy to the eligible couples.
  • The new Bill has put a complete ban on commercial surrogacy.
  • The Bill bars foreigners, homosexual couples, people in live in relationships and single individuals from becoming surrogate parents.
  • NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy
  • A woman can become a surrogate mother only for altruistic purpose and under no circumstances she will be paid for it, although payment can be made towards medical expenses.
  • The Bill will regulate surrogacy in India establishing a National Surrogacy Board at the Central level and State Surrogacy Board and appropriate authorities in the state and Union Territories.
  • The law will be applicable to the whole of India, except for the state of Jammu and Kashmir.
  • All Assisted Reproductive Technology (ART) clinics will need to be registered.
  • Surrogacy clinics will be allowed to charge for the services rendered in the course of surrogacy, but the surrogate mother cannot be paid.
  • Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/import of human embryo have all been categorized as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh.
  • Under the new Bill, the clinics will have to maintain records of surrogacy for 25 years.
  • The surrogate child will have the same rights of as that of a biological child.
Major benefits

The Surrogacy (Regulation) Bill, 2016:

  • Regulates the surrogacy services in the country.
  • Bans unethical commercial surrogacy and also sale and purchase of human embryo and gametes.
  • Allows ethical surrogacy (i.e. altruistic surrogacy) to needy infertile couples on fulfillment of certain conditions.
  • Controls unethical practices in surrogacy, prevent commercialization of surrogacy.
  • Prohibits potential exploitation of surrogate mothers and children born through surrogacy.
Shortcomings of the Bill
  • The Bill raises questions over the reproductive rights of a woman. The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, warranting interference of a fundamental right. It is for the person and not the state to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the state, constitutionally, cannot interfere.
  • Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14), or of being a reasonable classification, satisfying the objective sought to be achieved.
  • The Bill deprives single parents, homosexuals of availing the bliss of parenthood through surrogacy.
  • Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens
  • The Indian Council for Medical Research (ICMR), working under the ministry of health and family welfare, finalized the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005, after extensive public debate all over the country with all stakeholders.
  • In that it had been stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART.
  • Likewise, there was no legal bar on an unmarried woman going in for Artificial Insemination with donor semen (AID) and a child born to a single woman through AID would be deemed legitimate.
  • By anomaly, single men too could claim this right. These guidelines have not been rescinded till date. Successive draft ART (Regulation) Bills in 2008, 2010 and 2013, had reportedly proposed that ART in India would be available to all, including single persons and foreign couples.
  • Economically, the Bill is bound to have effect on the thriving medical tourism in the country and people associated with it.
  • There are certain countries, particularly European, surrogacy is banned for commercial reasons.
  • The Indian government took a very sensible decision then and decided not issue visas to people coming from such countries. But, there were others who came from countries like the US where surrogacy was available, but exorbitantly expensive.
  • India has also been a safe hub as compared to countries like Indonesia, where fertility procedures are completely unregulated.
  • Indian doctors are competent and clinics are clean and more importantly there was a contract to be signed, which eliminated exploitation and blackmail possibilities on both sides. A blanket ban on such medical tourists makes no sense at all especially when we issue visas to them for other forms of medical tourism.
  • Many countries including the UK that have experimented with altruistic surrogacy have realized that this only tends to push the whole transaction underground.
  • A woman who bears a child for another one is actually performing a service and needs to be compensated for it.
  • If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.
  • The Bill leaves several questions unanswered such as ensuring protection of health of surrogate mother, maternity relief available to her etc.

India has emerged as a surrogacy hub for couples from different countries and there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes.

Widespread condemnation of commercial surrogacy prevalent in India has also been regularly published in different print-and electronic media since last few years highlighting the need to prohibit commercial surrogacy and allow ethical altruistic surrogacy.

The 228th report of the Law Commission of India has also recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.