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The Surrogacy (Regulation) Bill, 2019

The Article on The Surrogacy (Regulation) Bill, 2019 touches upon the historical background of surrogacy at the domestic as well as international level. It covers the evolution in the field of surrogacy in India and explains the Surrogacy (Regulation) Bill, 2019, an analysis on the same and the futuristic approach of the Government in equipping India with the Surrogacy laws.

One of the functions of the institution of marriage is procreation of children, as rightly said by Malinowski. Women, however are not always capable to conceive due to myriad reasons such as miscarriage, hysterectomy, liver and heart diseases and failure of the plantation of embryo, to name a few. This leads to choosing for Artificial Reproduction Techniques or adoption as methods for procreation. As per the Reproductive Technology Council, the guidelines of Artificial Assisted Reproductive Techniques states surrogacy to be:
An arrangement whereby a woman agrees to become or attempts to become pregnant and bear child for another person.

The definition as per the Council does not seem to indicate any grey area, however discussing a few cases may awaken us to the gaps and irregularities in surrogacy agreements and would make us ponder the boon India received in the form of The Surrogacy (Regulation) Bill, 2019.

Take on Surrogacy at a Global Level

In the year 1987, the New Jersey's Supreme Court decision on the birth of baby M out of traditional surrogacy wherein Mary Beth, the surrogate mother refused to deliver the child which was in violation of the surrogacy contract and wherein the Court held that, The Government could not enforce a contract that orders a fit and loving mother to give away her child.

In the United Kingdom, there was a similar case where a non-gestational surrogate mother refused to give the child on the contentions that the commissioning parents have violent tendencies which can prove derogatory for the child. The Courts, in the matter observed that:
Although the surrogacy contracts are legal in the country, they are not legally binding by the Court and that while deciding such cases, the interests of the child are to be given utmost priority.

Background of Surrogacy In India
India was amongst the list of countries such as Russia, Ukraine and some states of U.S.A which allowed commercial surrogacy wherein the surrogate mothers were entitled to get compensation in cash or kind from the intended couples in addition to the medical expenses and insurance. The commercial surrogacy was legalised in India in 2002 which was banned in the year 2015. One of the reasons for such a step can be traced back to a leading case which led the Government to pay heed on the surrogacy regulations in the country.

The case was of Baby Manjhi where a Japanese couple took assistance of artificial reproduction in the form of surrogacy by engaging an Indian surrogate mother. The couple however got separated before the baby was born and the question before the Court was who will keep the baby.

The Husband was willing to keep the child while the wife was not and to add to the complexities, Japan did not recognise surrogacy then and Indian law was also unsettled in this regard. The case came to a conclusion when it was decided to hand over the baby to her grandmother. Although the case was closed, it opened the lacuna in the surrogacy laws which needed Government's attention.

The exploitation of surrogate women is evident from the case of 2018 in Hyderabad where a man aged 64 years was arrested for harassing the surrogate mother he had hired. Likewise a woman and a doctor were arrested in 2019 in Kolkata for running a surrogacy racket.

Thus, the exponential growth in the surrogacy industry, exploitation of surrogate women, and improper regulation of the surrogacy agreements led to the progression of introducing the Surrogacy Bill on the table of Parliament.

The Surrogacy (Regulation) Bill, 2019

The Bill was first mooted in 2016. It got further recognised in 2019 when Lok Sabha passed the draft legislation and which was then approved by the Union Cabinet after considering and accepting the Recommendations provided by the Rajya Sabha Select Committee.

The snippets from the draft Bill as passed by the Lok Sabha are as follows:

  • The Bill provides for the regulation of surrogacy in India.
  • Prohibits commercial surrogacy and encourages altruistic surrogacy i.e. surrogacy without any consideration except the medical expenses and insurance cover of the surrogate mother.
  • The Bill allows only Indian married couples to opt for surrogacy.
  • The surrogate mother and the intended couples to be close relatives and the definition of close relatives to be given in Rules and Regulations thereafter.
  • The formation of National Surrogacy Board at the Centre, State Surrogacy Boards at the State level and appointment of Authorities for the purposes of regulation.
  • The surrogate mother and the intended couples to procure certificate of eligibility from Appropriate Authority for the purposes of surrogacy.
  • Foreigners, Non Resident Indians, Persons of Indian origin banned to opt for surrogacy
  • Couples already having a child cannot opt for surrogacy; however they are eligible to adopt a child under a different legislation.
  • Surrogate mother is entitled to an insurance cover for 16 months
  • Defined infertility under the Bill as the inability to conceive within 5 years from marriage.
  • For abortion of the surrogate foetus, the consent of the intending couple is immaterial and written consent is required only of the surrogate mother subject to authorization from the appropriate authority in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971.
  • Registration of surrogacy clinic is mandatory to undertake surrogacy or to render surrogacy procedures.
  • After birth, the child is to be the biological child of the intending couple.
  • Homosexual couples, live-in relationship mates, single individuals cannot have children via surrogacy in India.
  • The punishment for indulging in commercial surrogacy as mentioned in the Bill to be imprisonment up to 10 years and fine up to 10 lakhs.

Recommendations of the Select Committee
The recommendations to the Bill as passed by the Lok Sabha on August 05, 2019 was given when it was tabled before the Rajya Sabha. The Committee had raised concerns over few of the provisions of the Bill and had recommended in place of such provisions which were eventually adopted by the Union Cabinet on February 03,2020.

Few of the recommendations made were as under:
To allow willing women instead of close relatives for altruistic surrogacy. The argument for including the same is to increase the ambit of the availability of more surrogate mother and to make altruistic surrogacy more convenient.

To allow single woman to opt for surrogacy and the argument advanced for the recommendation was that there can be situations where a single woman genuinely needs to opt for surrogacy. For example, young widow who is incapable of bearing a child and can opt for surrogacy however, she does not do so because of the social stigma surrounding with respect to pregnancy of widow.

The omission of 5 year wait period to opt for surrogacy as it is too long a period to wait for a child and hence to omit the definition of infertility which provides for the 5 year threshold for surrogacy.

To include single women including divorcee/widow within the age of 35-45 years of age and Persons of Indian origin to opt for surrogacy so as to ensure equality of choices amongst all classes of society.

To extend the period of insurance cover to 36 months from 16 months in order to increase the security of surrogate mothers.

Critical Analysis of the Bill
On reading and understanding the Bill as approved by the Union Cabinet, a few clarification gaps can be pointed out as under:
The Bill is silent on the rights of LGBTQ couples for parenthood as it allows only heterosexuals and single women to opt for surrogacy.

The banning of commercial surrogacy can be criticized as it is not every time possible to find women who are wanting to act as surrogate mother without any monetary benefit or incentives for bearing the pain apart from receiving medical expenses and insurance cover. A regulation of commercial surrogacy rather than complete ban can help the economically vulnerable surrogate mothers for whom it can become a source of livelihood.

A due regard on fashion surrogacy is also lacking where the celebrities usually opt for surrogacy as they do not want to derail their figure or outlook in public.
The Bill contradicts various established legislations in India on adoption such as Hindu Adoption and Maintenance Act, 1956 and Juvenile Justice Act, 2015 which allows for conditional adoption for single and divorced parents.

The Bill can be contended under Article 21 which deals with Right to Life and the State on that regard cannot interfere with the procreation and parenthood rights of the persons by elucidating the mode and manner of parenthood.

Although the Bill can be felt of having few shortcomings that needs to be settled, the liberal approach and proactive ness of the Government towards issues such as medical termination of pregnancy, surrogacy, artificial re productory techniques, reproductive rights, etc. proves to be a boon. The Bill helps in curbing exploitation of the poor, uneducated women at the hands of the rich and is an evidence of a progressive nation in making.

Also it will help in the regulation and encouragement of surrogacy in an optimistic manner. The recommended changes as approved by the Union Cabinet such as allowing the divorcee, widow to opt for surrogacy and to replace close relative to be a surrogate mother for willing woman to act as a surrogate mother are steps ahead taken for the efiiciency of carrying out surrogacy and diminishing arbitrariness and unequality in the society.

Written By: Khushboo Tibrewal

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