[Premium] Surrogacy Regulation in India: The Big-Picture Analysis

Recently, the Lok Sabha has passed the Surrogacy (Regulation) bill, 2016 which prohibits commercial surrogacy and allows only altruistic surrogacy. The bill seeks to protect the rights of the surrogate mother and the child born from surrogacy and promotes ethical surrogacy. However, it falls short of addressing certain key concerns regarding the surrogacy in India.

What is surrogacy?

  • Surrogacy is an agreement between a couple (who cannot conceive) and a surrogate mother who are willing to carry their child.
  • There are two types of surrogacy based on procedure viz – Traditional (Intra-Autrine Insemination) surrogacy and Gestational (In-Vitro Fertilization) surrogacy.

What is the need for surrogacy regulation law? (Arguments against Commercial surrogacy)

  • In 2002, India became the 1st nation to legalise commercial surrogacy (surrogacy on payment).
  • By 2012, India had become the surrogacy capital of the world with surrogacy tourism value at approx. $500 million annually.
  • About 2000 babies are born each year via commercial surrogacy.
  • Surrogacy in India is facilitated by the cheap medical facilities, advanced reproductive technology know-how, lack of regulation and mainly poverty.
  • Exploitation of surrogate mothers.
    • Surrogate mothers practice it as a means of earning a livelihood and are generally abused.
    • During pregnancy, they were kept confined in hostels and not allowed to meet their families.
    • Some women were doing it frequently for a meager amount thus putting their own bodies at risk.
  • Legal issues are also here
    • For example, in 2008, a Japanese couple started the process with a surrogate mother in Gujarat, however, before the child was born, they split and there were no takers for the child.
    • In 2012, an Australian couple commissioned a surrogate mother and randomly chose one of the twins that were born.
  • Thus, the 228th report of the Law Commission of India had suggested for prohibiting commercial surrogacy which is being allowed only in few countries such as Russia, Ukraine, and California.

What is the aim of the bill?

  • It seeks to prevent the exploitation of women particularly those in rural and tribal areas.
  • It ensures parentage of children born out of surrogacy is legal and transparent.

What are the key features of the bill?

  • The bill prohibits commercial surrogacy which is punishable with imprisonment up to 5 years.
  • It allows only altruistic surrogacy (by close relatives) for married couples.
  • It permits surrogacy only to Indian couples
    • Who are infertile
    • legally married
    • between the ages of 23-50 (female) and 26-55 (male)
    • trying for a child for at least 5 years and
    • do not have a surviving child, either biological or adopted, except in situations where the child is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
  • It also has safeguards against sex selection of the baby.
  • It requires all surrogacy clinics to be registered.
  • Clinics can charge for these services, however, the surrogate mother cannot be paid.
  • The national and state regulatory boards will be the regulating authorities.

What are the 2018 amendments? (as recommended by the standing committee)

  • The earlier version provided for a minimum imprisonment of 10 years for certain offences. The present one gives a maximum of 10 years.
  • The present version
    • Prohibits the surrogate mother to use her own gametes (eggs).
    • Provides her the choice to withdraw before the embryo is implanted.
    • Puts a condition for getting a “certificate of essentiality” by the intending couple.
    • The couple must also provide 16-month insurance coverage for the surrogate mother including postpartum complications.

What are the concerns with the bill?

  • In India, altruistic surrogacy is not very different from the commercial surrogacy because kinship and family hide the commercial element.
  • Restricting only a blood relative to be a surrogate mother is illogical and unreasonable.
  • Lack of clear definition of what the term ‘close relative’ means and it may be misused.
    • Unlike the surrogacy bill, the Transplant of Human Organs Act defines ‘near relatives’ as the spouse, son, daughter, father, mother, brother or sister’.
    • Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
  • It excludes foreigners, gay couples, single men and women and live-in couples from seeking surrogacy thus violating the right to equality under Article 14 of the constitution.
  • The Right to life under Article 21 includes the right to reproductive and right to parenthood.
  • Fertility specialists and attached business would suffer.
  • Commissioning mothers who are carrying a child would be left in limbo.

What is the way forward?

  • India can follow the example of U.K., wherein the laws on surrogacy permit only altruistic arrangements where the surrogate can be paid only reasonable expenses. The ‘reasonable expenses’ include payment for medical treatment, and in-vitro fertilization (IVF) but may include other expenses also.
  • Altruism should also entail the provision that the surrogate is the legal mother of the child, which can be transferred to the parents by means of a legal process including adoption, rather than only going for surrogacy.
  • The option of surrogacy should be equal for all people rather than discriminating based on nationality, marital status or sexual orientation.

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