Note4Students:

Recently union cabinet has approved the draft Surrogacy (Regulation) Bill 2016. This bill has been debated vigorously in newspapers. Many op-eds have come in the newspaper since the bill has been drafted.

Context

Recently union cabinet has approved the draft Surrogacy (Regulation) Bill 2016. The bill aims to protect the woman from victimization at the hands of those whose need for a child may tempt them to overlook the exploitation rampant in the current commercial surrogacy ecosystem. The draft surrogacy Bill aims at regulating commissioning of surrogacy in the country in a proper manner. The situation demands such a bill so urgently because by 2012, India had become the ‘surrogacy capital’ of the world.

What is surrogacy?

When an another woman carries and gives birth to a child for a couple who want to have a baby but are unable to do so, because of infertility or some other reasons, it is called surrogacy. When the couple is medically unfit to conceive then the surrogate mother is artificially inseminated. Such case is called Biological Surrogacy. Whereas in gestational surrogacy the fertilised egg is placed into the uterus of the surrogate mother.

Background:

India is the first country to legalise commercial surrogacy in 2002. By 2012, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually. In India it became a way of earning livelihood and are often abused. It has been done usually for a payment with help of agents and doctors in the market. Currently there is no proper regulation on surrogacy in India. While estimates of the size of the surrogacy market vary wildly, it is one in which the woman carrying an embryo has been in a grey zone, with uncertain legal and compensatory protection. Compensation is not the only situation where surrogate mothers are exploited. For instance, A Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split and there were no takers for the child. Another instance in 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that was born. In the light of these experiences, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy. In Jan Balaz vs. Anand Municipality & Ors., the Gujarat high court had to adjudicate upon a case relating to the issue of citizenship of twin children who were born out of surrogacy in India when the commissioning parents’ home state of Germany had refused to grant citizenship to the children.

Key features of the Legislation

1. The Bill will regulate surrogacy in India establishing a National Surrogacy Board at the Central level and State Surrogacy Board and appropriate authorities in the state and Union Territories to ensure effective regulation.
2. It prohibit commercial surrogacy and allow for altruistic surrogacy to the needy infertile couples.The Bill bars foreigners, homosexual couples, people in live in relationships and single individuals from becoming surrogacy.
3. Only childless, straight Indian couples married for a period of 5 years, having proven fertility problems are eligible for surrogacy. (Between the age group 23-50 years for women and 26-55 years for men who do not have a surviving child are eligible for surrogacy.)NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy Eligible couples will have to turn to “close relatives”, not necessarily related by blood for altruistic surrogacy – no exchange of money between the commissioning couple and the surrogate mother. (The Bill, which borrows heavily from UK’s altruistic surrogacy Bill).
4. Women acting as surrogates can do so only once in her life time.
5. All Assisted Reproductive Technology clinics will have to be registered with the Authorities.10 months during which pregnancies underway now can be seen through and babies delivered.
6. The child born through surrogacy will have the rights of a biological child.
7. Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.
8. It promises to ensure parentage of children born out of surrogacy is legal and transparent.

Merits of the Legislation

• 1. The proposed Bill will help in preventing exploitation of women especially those from rural, poor and tribal belts.
  2. The rights of both surrogate mother and child are ensured by the new legislation.
  3. By bringing in altruistic surrogacy model and allowing a woman to be a surrogate only once in her lifetime, the government aims to ensure better health and life of the surrogate mother.
  4. It proposes punishment with imprisonment of not less than 10 years along with a fine up to Rs.10 lakhs in case of exploitation and other irregularities.
  5. Adoption is an underutilized option will be promoted along with the couple’s happiness.

Demerits of the Legislation

1. The right to life includes the right to reproductive and right to parenthood. So the state should not decide the modes of parenthood.
2. Sudden interruption would just pushed the $500 million industry underground. Thus the very purpose of the bill- to protect surrogate mothers from exploitation would be defeated. The bill is will affect the thriving medical tourism in the country and people associated with it.
3. Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14 and 21), or of being a reasonable classification, satisfying the objective sought to be achieved. This plausibly violates the ‘right to reproductive autonomy’ as laid down in B.K. Parthasarathy vs Government of Andhra Pradesh.
4. The Indian Council for Medical Research (ICMR), working under the ministry of health and family welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. In that it had not been mentioned such prohibitions.
5. Due to less opportunity Doctors migrate to foreign countries. This legislation may further push the situation.
6. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.
7. The proposed provisions in the Bill might act as a ground that breeds underground surrogacy. It is not necessary that all the medical clinics will adhere to law. There will be corruption and unethical practices and exploitation of poor women.
8. But it lacks in addressing different medical conditions like a women has medical problem to conceive. It is illogical to make her wait for 5 years.
9. The surrogate mother must be a ‘close relative’ of the intending couple.  The Bill does not define the term ‘close relative’. Restricting only a blood relative to be a surrogate mother is illogical and unreasonable. Restricting only a blood relative to be a surrogate mother is illogical and unreasonable.
10. For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required.  The Bill does not specify a time limit for granting such an approval.  Further, the intending couple has no say in the consent to abort.

Way Forward/Conclusion

1. A blanket ban on such medical tourists makes no sense at all especially when we issue visas to them for other forms of medical tourism. Many countries including the UK that have experimented with altruistic surrogacy have realized that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it.
2. It has to be understood that a woman who enters into surrogacy is not out of will but because she is pushed towards it for a decent livelihood. Therefore, altruistic surrogacy will lead them to look for other means of living to sustain themselves.
3. The law should respect the rights of the citizens.
4. The economic aspects and scientific aspects should be considered along with the social and legal aspects.
5. The need of the hour is to regulate the unregulated surrogacy market to ensure and protect the rights of surrogates by ensuring the rights of the commissioning parents and children born as a result of such arrangements. The government should rethink the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject for the formation of a progressive regulatory framework

Questions

Q) What is the significance of the proposed Surrogacy Bill in India? Explain the challenges still remaining in the sector.

Q) Surrogacy is an Altruistic work. It cannot be made commercial as it will be unethical and it is against the values of the Indian society and exploitative nature of the commercial surrogacy industry. Express your views with arguments (PAPER IV- Ethics).

Q) Recently the government has proposed a legislation on Surrogacy. Due to many reasons it gave rise to mixed response. Analyse the provisions of the bill and explain its suitability in the present situation of Indian society.

Sources:

PRS India Website

Big Picture Discussion

The Hindu News

Ministry of Health and Family Welfare

The Wire