The Surrogacy (Regulation) Bill 2019 aims to regulate the practice of surrogacy in India and allow only “ethical altruistic surrogacy. Commercial surrogacy a practice also known as rent a womb was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation.

Body:

Need for the bill:

• India has emerged as a surrogacy hub for couples from other countries.
• 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:

• Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) 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.
• The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) 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 (iv) 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: (i) a close relative of the intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) 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; (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) 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, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) 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: The offences under the Bill include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) 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.

Concerns associated with the bill:

• The Bill raises questions over the reproductive rights of a woman. The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, warranting interference of a fundamental right.
• It is for the person and not the state to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the state, constitutionally, cannot interfere.
• Criminalisation of commercial surrogacy is a refusal by the state to actually consider the exercise of agency that leads a woman to become a surrogate mother.
• Altruistic surrogacy includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage. However, the Bill lacks the definition of the ‘close relative’.
• The Bill specifies that the intending couples should be married Indian couples. There is no mention of Non-Resident Indians working or studying abroad who may want to come back home to have a baby.
• 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), or of being a reasonable classification, satisfying the objective sought to be achieved.
• The bill deprives unmarried couples, homosexual couples and single men and women of availing the bliss of parenthood through surrogacy
• Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens.
• Knowing the reality of patriarchal families in India, the stigma of infertility, the pressure of producing children to maintain lineage and the low bargaining power of women, it can be expected that young mothers will be coerced into becoming surrogates for their relatives.
• Due to the prevalence of clandestine ART clinic coupled with viewing commercial surrogacy as inherently exploitative and banning it only expands the potential for exploitation as it would force the business underground..
• Bill also prohibits ‘fashion surrogacy’ as only the couple who are infertile can opt for surrogacy.

Way forward:

• For surrogacy to happen, we need embryos, and embryos are cultured in various In-Vitro Fertilisation (IVF) laboratories. So regulation of surrogacy must be preceded by law on Assisted Reproductive Technology (ART).
• Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.
• The Standing Committee had recommended a model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care. The Bill should, at the very least, incorporate these provisions.
• Right to privacy of donor as well as surrogate mother should be protected.
• Surrogacy should be made inclusive for all class of people irrespective of their sexuality

Conclusion:

Although the bill bans commercial surrogacy, it falls short to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child. The rights of surrogate mother and child born must comprehensively be formulated, along with that ART must be regulated thoroughly.