Surrogacy in India and Indian surrogates became increasingly popular amongst intended parents in industrialized nations because of the relatively low costs and easy access offered by Indian surrogacy agencies.

Before commercial surrogacy was banned in 2015, India was a popular destination for surrogacy.

The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India.

Context

The Union Cabinet recently approved the Surrogacy (Regulation) Bill, 2020 which allows any “willing” woman to be a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.
The bill incorporates all recommendations made by a Rajya Sabha select committee, which studied an earlier version of the draft legislation.
The bill establishes a liberal view on the issues of reproductive rights of women, be it medical termination of pregnancy, the Assisted Reproductive Technology Regulation Bill.

What are the new Amendments?

It allows any “willing” woman to be a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.

The bill proposes to regulate surrogacy by establishing National Surrogacy Board at the central level and, State Surrogacy Board and appropriate authorities in states and UTs respectively.

The proposed insurance cover for surrogate mother has now been increased to 36 months from 16 months provided in the earlier version.

Ethical surrogacy will be allowed on fulfilment of certain conditions to lndian married couples, Indian-origin married couples and Indian single woman (only widow or divorcee between the age of 35 and 45 years).

Various provisions of the 2019 Bill

Background

The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare in Lok Sabha in July 2019.
The Bill defined surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Regulation of surrogacy

The Bill prohibited commercial surrogacy but allowed altruistic surrogacy.
Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
Commercial surrogacy 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.

Purposes for which surrogacy is permitted

Surrogacy is permitted when it is:

for intending couples who suffer from proven infertility
altruistic
not for commercial purposes
not for producing children for sale, prostitution or other forms of exploitation and
for any condition or disease specified through regulations

Eligibility criteria for intending couple

The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
A certificate of essentiality will be issued upon fulfilment of the following conditions:

A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

Preconditions for Eligibility

The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:

the couple being Indian citizens and married for at least five years;
between 23 to 50 years old (wife) and 26 to 55 years old (husband);
they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; and
other conditions that may be specified by regulations.

Eligibility criteria for surrogate mother

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

a close relative of the intending couple;
a married woman having a child of her own;
25 to 35 years old;
a surrogate only once in her lifetime; and
possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.

Appropriate authority

The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
The functions of the appropriate authority include;

granting, suspending or cancelling the registration of surrogacy clinics;
enforcing standards for surrogacy clinics;
investigating and taking action against breach of the provisions of the Bill;
recommending modifications to the rules and regulations.

Registration of surrogacy clinics

Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.

National and State Surrogacy Boards

The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
Functions of the NSB include:

advising the central government on policy matters relating to surrogacy;
laying down the code of conduct of surrogacy clinics; and
supervising the functioning of SSBs.

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.

Offences and penalties for non-compliance

The offences under the Bill include:

undertaking or advertising commercial surrogacy;
exploiting the surrogate mother;
abandoning, exploiting or disowning a surrogate child; and
selling or importing human embryo or gametes for surrogacy.

The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

Issues with the 2019 bill

Having a child is a basic human right. Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”.
The Judiciary in India also has recognized the reproductive right of humans as a basic right.
If the reproductive right is basic constitution right then the right to have a child through surrogacy should also be a basic constitutional right.
The Bill left out a lot of people who might want to have a baby through surrogacy, including unmarried couples, homosexual couples and single men and women.

Various issues with Surrogacy

The woman, who is carrying a baby, generally get very less remuneration and large share is taken by ART clinics.
Surrogacy is generally involves gender selection which itself illegal in India. ART clinics on the name of surrogacy illegally running sex determination and abortion industry.
The women health is a serious issue in surrogacy.
The surrogacy involves many risks to baby health such as genetic disorders, low birth weight or membrane damage, etc.
Surrogacy leads to commoditization of the child, breaks the bond between the mother and the child, interferes with nature and leads to exploitation of poor women in developing countries.
Many religions do not allow surrogacy even in case of in vitro fertilization like in Catholicism. According to it a child is a gift not right and adopting unnatural means are gravely immoral.
International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved. Many times citizenship issues arise due to lack of information on laws of both the countries.

Way Forward

In India, people are practising surrogacy when nearly 12 million several children are orphans.
Adoption of a child in India is a complicated and lengthy procedure for those childless couples who want to give a home to these children. Hence, they are forced to opt for IVF or surrogacy.
There is a strong need to modify and make the adoption procedure simple as an alternative to surrogacy.
A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required.

References

https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019

https://www.livemint.com/politics/policy/cabinet-nod-to-surrogacy-bill-now-widows-and-divorcee-women-can-benefit-as-well-11582720671346.html

https://www.myadvo.in/blog/surrogacy-laws-in-india-an-evaluation/