Mentor’s Comment

1. Give data explaining India being a hub of commercial surrogacy.
2. Suggest problems of commercial surrogacy.
3. List provisions of the bill.
4. Suggest how they try to address these problems.
5. List how they fall short of goals or create other problems.
6. Conclude suggesting some reforms in the existing bill.

Answer:

The Cabinet has approved the introduction of Surrogacy (Regulation) Bill, 2019 that aims to prohibit commercial surrogacy in India. India has emerged as a surrogacy hub for couples from other countries and there have been reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets involving intermediaries importing human embryos and gametes. The 228th report of the Law Commission of India has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.

Key features of the bill:
The Bill proposes to regulate surrogacy in India by establishing a National Surrogacy Board at the central level and state surrogacy boards and appropriate authorities in the state and Union Territories.
The purpose of the Bill is to ensure effective regulation of surrogacy, prohibit commercial surrogacy, and allow ethical surrogacy.
While commercial surrogacy will be prohibited, including sale and purchase of human embryos and gametes, ethical surrogacy for needy couples will be allowed on fulfilment of stipulated conditions.
It will also prevent exploitation of surrogate mothers and children born through surrogacy.
There will not be any financial implications, except for the meetings of the National and State Surrogacy Boards and appropriate authorities, which will be met out of the administrative budgets of respective departments.

Why the Need for a Surrogacy Bill
Fertility tourism: India has emerged as a hub for infertility treatment, attracting people from the world over with its state-of-the-art technology and competitive prices to treat infertility.
End exploitation: India has emerged as a surrogacy hub for couples from different countries and there have been reports of unethical practices such as exploitation of surrogate mothers, abandonment of children born out of surrogacy and cases of intermediaries importing human embryos and gametes.
Commercial surrogacy has been legal in India since 2002 under the guidelines of the Indian Council of Medical Research (ICMR). The Law Commission of India had also recommended prohibiting commercial surrogacy and allowing only ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.
Exploitation of Women: Growing commercial surrogacy has often led to exploitation of poor, illiterate rural women who are often persuaded in such deals by their spouse or middlemen for earning easy money. Further, there has been no provision of insurance or post-pregnancy medical and psychiatric support for them.
Interest of Child: There are concerns over commodification of children born through commercial surrogacy, which is in violation of child rights. Major issues evolving around child rights include abandonment of surrogate babies, child trafficking across borders, and citizenship obstacles.
Misuse by Clinics: Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused bythe surrogacy clinic leading to unethical practices such as exploitation and human rights violation of surrogate mothers,and import of human embryos and gametes.
Boost to adoption: Strict regulation of surrogacy market in India would also help boost adoption of children

Key Issues in the bill:
Definition of ‘infertility’ restricted to failure to conceive: The Bill defines infertility as the inability to conceive after five years of unprotected sex or medical conditions preventing a couple from conception. This definition does not cover all cases in which a couple is unable to bear a child, such as weak uterus, multiple miscarriages, fibroids, hypertension and diabetes
‘Close relative’ not defined: The Bill does not define the term ‘close relative’. Further, the definition limits the opportunity for couples who don’t have close female relatives of child-bearing age.
The conditions of the Bill will also exclude inter-faith and inter-caste couples who don’t have their families’ support from opting for surrogacy
Absence of compensation: The parliamentary standing committee observes that that expecting a woman, that too, a close relative to be altruistic enough to become a surrogate and endure all hardships of the surrogacy procedure in the pregnancy period and post-partum period is equivalent to a form of exploitation.
It further states that it is like “forced labour” because non-payment of any compensation is against Article 23 of the Constitution of India.
Surrogacy Black Market: Critics are of the opinion that a complete prohibition of commercial surrogacy would result in a surrogacy black market underground thus making conditions even more unsafe for surrogate mothers.
Reinforcement of patriarchy: According to critics, keeping surrogacy within the family would, in a patriarchal set-up, reinforce the idea that a woman’s body is not her own. The likelihood of women being forced by family members to undergo surrogacy could increase and lead to worse form of exploitation than commercial surrogacy.
State Authority: The Bill is reflective of the state’s authority regulating the lives, bodies and behaviors of women and sexual minorities and one’s choice of family and procreation. Critics opine and this a violation of one’s right to freedom.
Arbitrary Restrictions: On surrogate mothers: The bill arbitrarily states that surrogate mothers can undergo the process of surrogacy only once.
On couples: It states that the couple intending to adopt the child must consist of a female between 23 and 50 years, and a male between 26 to 55 years, and that the couple must have been married for at least five years before opting for surrogacy.

Way Forward:
The potential for exploitation of surrogate mothers is linked to the lack of regulatory oversight and lack of legal protection. This can be minimized through adequate legislative norm-setting and robust regulatory oversight rather than a complete ban on commercial surrogacy.
In absence of any compensation, altruistic surrogacy appears to be another form of exploitation. Thus, it is important to have provisions for surrogate mothers to be adequately and reasonably compensated for their services.
Given that the Supreme Court has provided legal sanctity to live-in relationships and decriminalized homosexuality, there should be a broader eligibility criteria to include queer couples, live-in couples and even divorcees and widows.
The condition that the surrogate mother must a close relative of the intending couple has been subjected to widespread criticism and thus needs to examined keeping in mind the interests of all stakeholders.
The definition of infertility should be expanded considering the medical conditions which are becoming very common with changing lifestyles.

All these aspects along with other issues highlights the patriarchal nature of this bill. Surrogacy is very important social and economic issue with touches to the morality and indivisual rights over his/her body. There is need of larger public discourse with respect to this conservative issue in an environment.