On 15th July 2019, the Surrogacy (Regulation) Amendment Bill, 2019 was introduced in the Lok Sabha by the government with the intention to promote Altruistic Surrogacy in the country. In the last 5 years, there have been occasions when Bills related to surrogacy have been tabled before the Parliament (2016 and 2018) but no concrete action was taken and hence, the Bills lapsed after the dissolution of the 16th Lok Sabha. The Bill contains provisions which state that a surrogate mother has to be a close relative of the intending couple. The Government is of the view that the new Bill seeks to put a curb on the rampant commercialisation of Surrogacy.
What is Surrogacy?
The new Bill defines Surrogacy as an act 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. Moreover, the Bill forbids the practice of Commercial Surrogacy which includes monetary benefit or reward that exceeds basic medical expenses and insurance coverage to the surrogate mother. Finally, the Bill allows only Altruistic Surrogacy, a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother.
Key Amendments sought under the new Bill
Firstly, the Bill lays down conditions under which Surrogacy is permitted and those conditions are: a) When such Surrogacy is for intending couples who are suffering from proven infertility; b) In cases of Altruistic Surrogacy; c) Commercial Surrogacy is forbidden; d) Surrogacy is prohibited for producing children for sale, prostitution etc.; and e) Any other condition as per the regulation.
Secondly, a Certificate of Essentiality and a Certificate of Eligibility issued by the appropriate authority must be held by the intending couple.
A Certificate of Essentiality can only be issued after fulfilling certain conditions such as: a) A Certificate of proven infertility of one or both members of the intending couple issued by the District Medical Board; b) If a Magistrate passes an order of parentage and custody of the surrogate child; c) Insurance coverage of 16 months is provided covering postpartum delivery complications for the surrogate mother.
A Certificate of Eligibility is issued to the intending couple after certain conditions are fulfilled such as: a) The couple are Indian citizens and have been married for at least 5 years; b) The wife is between 23 to 50 years of age and the husband is between 26 to 55 years of age; c) The intending couple do not have any surviving child i.e., biological, adopted or surrogate and this would be exclusive of a child who is physically or mentally infirm or is suffering from a life-threatening disease; d) Any other condition as per the regulation.
Thirdly, the Bill seeks to list the eligibility criteria for the surrogate mother and in order to undergo Surrogacy the mother has to be: a) In close relation to the intending couple; b) A married woman having a child; c) Between 25 to 35 years of age; d) A surrogate only once during her lifetime; and e) Medically and Psychologically fit to undergo Surrogacy and she is ineligible to provide her own gametes for Surrogacy.
Fourthly, under the new Bill, one or more appropriate authorities shall be appointed by the central and the state governments within 90 days of the enactment of the Act. The powers of the appropriate authority include: a) Power to grant, suspend or cancel registration of surrogacy clinics; b) Power to enforce decent standards for such clinics; c) Power to investigate and take action against breach of the provisions of the Bill; and d) Power to recommend changes to the rules and regulations.
Fifthly, the new Bill forbids surrogacy clinics to undertake surrogacy related procedures unless they are registered by the appropriate authority. Clinics should apply for registration within 60 days of setting up of the appropriate authority.
Sixthly, the new Bill provides for setting up of National Surrogacy Board (NSB) and State Surrogacy Board (SSB) by the central and the state government, respectively. NSB would be set up to recommend the central government on policy issues, to lay down the code of conduct which is to be followed by the clinics and to supervise the SSB.
Seventhly, the Bill lays down rules to determine the parentage and abortion of the surrogate child. Under the Bill, the surrogate child shall be considered as the biological child of the intending couple. Abortion of a surrogate child can only be sanctioned after obtaining the written consent of the surrogate mother and the appropriate authority. Further, the surrogate mother is empowered to withdraw from surrogacy before the embryo is implanted.
Eighthly, the Bill also provides for penal punishments will include: a) Advertising or undergoing commercial surrogacy; b) Manipulating the surrogate mother; c) Abandonment or exploitation of the surrogate child; c) Sale or purchase of human embryo or gamete for the purpose of surrogacy. An individual can be sentenced up to 10 years if found guilty under the new Bill.
Potential Loopholes in the Bill
Firstly, for surrogacy to take place requirement of embryos is crucial and embryos are cultured in IVF laboratories. However, the Assisted Reproductive Technology (ART) Bill has remained dormant for years and enacted of the Surrogacy (Regulation) Amendment Bill would serve a limited purpose if enacted before the ART Bill.
Secondly, the Bill clearly specifies that the intended couple must be married Indian couple. However, there are many Non-Resident Indian (NRI) couples who have shown interest in coming back to India and having a surrogate child. The new Bill provides no such opportunity for them.
Thirdly, the Bill asserts that only a close relative of the intending couple can become a surrogate mother but such provision would discourage other couples to come forward as they do not have close relatives who are willing to undergo surrogacy.
Fourthly, the Bill surprisingly excludes unmarried and gay couples along with single men and women.
Fifthly, Altruistic Surrogacy has been a failure in many countries and there have been cases where adequate medical facilities have not been provided to the surrogate mother.
Sixthly, the new Bill fails to take into consideration various physical and mental factors which are at stake during surrogacy.
The Way Forward
It is pertinent that a comprehensive discussion takes place in the Parliament so that certain changes are recommended to strengthen the Bill.
It is important that the practice of surrogacy should now be recognised as a profession to maintain the dignity of the surrogate mothers.
Moreover, intending couples should be allowed to explore other options if a close relative is not found and the practice of surrogacy should be allowed for LGBTQ couples as they cannot have a child without surrogacy.
Finally, a provision should be added where it is necessary for the surrogate mother and the intending couple to sign a contract to avoid exploitation by middlemen and agents.
The Bill is a well-thought legislation but still suffers from certain bottlenecks which can be removed if there is an exhaustive discussion between the parties in the Parliament.