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The Surrogacy (Regulation) Bill, 2019 In Brief

The altruistic surrogacy model is based more on moralistic assumptions than any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner.

The ultra-deific nature of motherhood is questioned when it is put parallel to the service of Surrogacy.

 To have a positive outlook towards this concept the government passed The Surrogacy (Regulation) Bill, 2019 that bought varied changes in its implementation where the Select Committee of the Rajya Sabha, chaired by BJP MP Bhupendra Yadav had wad deliberations on this matter.

This unregulated industry had witnessed misuse of women at assorted levels that led the government in putting a complete ban on Commercial surrogacy through this Bill. Although the doors were kept open for Altruistic surrogacy (where the surrogates are close relatives of the intended parents and they do not receive any monetary compensation) for preventing women to be exploited by wealthy hands.

A rough estimate says there are about 2,000-3000 surrogacy clinics running illegally in the country and a few thousand foreign couples resort to surrogacy practice within India and the whole issue is thoroughly unregulated. The ban on commercial surrogacy was the need of the hour.

But on the other hand, the requirement of the surrogates to be a ‘close relative' of the intending parents was severely criticized by the public not only because the definition of it was missing from the Bill but also because very few close relatives would be willing to surrogate.

In a conservative society like India, hardly any woman will agree to carry someone else's baby. Most women are anyway bound by the decisions of their husbands and in-laws, who won't allow them to be a surrogate for someone like her sister, for example.

Nonetheless, this proposal would prevent the exploitation of the Below Poverty Line (BPL) women who are forced to indulge in this activity for money. Also, a close relative can only for once in her lifetime surrogate that will reduce their chances of getting abused and manipulated.

The Bill has set eligibility criteria for the intending parents for availing surrogacy i.e., they should be married for at least five years.

The Committee highly debated on this provision as this limitation interfered in one's personal life.
Any Government or any law should not interfere with someone's personal life as what happens in a woman's body and a man's mind cannot be judged by a panel. Since science has taken giant leaps in giving hope to childless couples, it should be left to the couple to avail it.

Although these proposed five years were essential for the infertile couple as it gave them a suitable time period for availing all the Assisted Reproductive Technology (ART) which are necessary as it is difficult to prove infertility in the early ages of marriage.

Also, there were questions about the upper age limit of the surrogates that was pinned between 25-35 years. The Parliamentarians backed the recommendation given by the DRSC on Health and Family Welfare in their 102nd Report on the Surrogacy (Regulation) Bill, 2016 i.e., to increase the age to 39 years.

Although scientifically the age between 25-35 is considered best for the health of both the mother and the child as there are fewer chances of miscarriage, pregnancy-related adverse effects, abnormalities in a child, etc. These risks tend to increase with the increasing age of the mother.

Initially, the Bill excluded the provision for providing compensation to the surrogates that excluded medical expenses, insurance coverage, and reimbursement of her lost wages (if she was a working woman). Later, with many deliberations expenses like medical, post-partum complications, unnatural abortions, situations of death were included and insurance was provided from the beginning of the procedure to seven months post-delivery.

Its regulation was moved under the Insurance Regulatory and Development Authority (IRDA) established by the Insurance Regulatory and Development Authority Act, 1999. For the loss of wages, it shall be covered under the Maternity Benefit Act, 2017 where apart from wages, leave benefits and assurance of continuing the service shall be provided. Simultaneously, this would eliminate the working of any middle-men in this process.

There was a substantial consideration among the Committee members to include a provision that makes registering a legal contract between the parties i.e., the surrogate mother, surrogacy clinic and the intending couples mandatory for providing legal protection by covering issues of insurance; compensations; outlays; pre/post-delivery procedures; legal and psychological counseling, highlighting the rights, duties, and liabilities of all the parties to contract.

But the majority of the members were against making such legal contracts in altruistic surrogacy as this service was more of a family arrangement. This was important for upholding the quintessence of establishing altruistic surrogacy.

The only countries in the world that support a binding contract on surrogacy are the countries that allow commercial surrogacy. There is not a single country that allows altruistic surrogacy and an enforceable contract.

There was no space for single women to avail surrogacy benefits-
The government stated that in the institution of marriage, both the parents are equally responsible for the upbringing of their children that becomes difficult for a single parent to do. Therefore, to protect the rights of the child this prohibition was vital.

In spite of this argument, the Committee stood for the single women (a widow or divorcee):
There are conditions under which a single person genuinely needs to avail surrogacy option to have a child. One such situation is young age widow, who is otherwise capable but cannot carry a child because of fear of the social stigma attached to pregnancy of a widow in our society. One cannot explain to everyone that the child in her own womb is of surrogacy and therefore such a single person should be given option of surrogacy within permitted regulation under the Bill.

After considering the above viewpoint, the definition of intending woman under Clause 2 (r) (a) was amended, an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail surrogacy.

Although the Bill still overlooks the rights of other categories of people like, single men and women who have not married at all; live-in couples and gay couples. This exclusion surely does question their reproductive autonomy.

Taking a glance at some of the heated deliberations above, it is apparent that surrogacy should not be seen as an economic opportunity as many take this road to earn extra bread. It becomes essential to harmonize the conflicting interests to ensure a better future for all the stakeholders involved in this process.

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