Context

The Union Cabinet has approved the Surrogacy (Regulation) Bill, 2020. The Cabinet incorporated the recommendations of the Rajya Sabha Select Committee before approving the Bill.

Surrogacy means the process of carrying and delivering a child for another person. Thus, a surrogate mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from another woman.

Commercial surrogacy involves an agreement, which includes monetary compensation to the surrogate mother along with medical expenses associated with the pregnancy. 

Altruistic surrogacy focuses on providing no monetary compensation to the surrogate mother

Advantages of Surrogacy

• Surrogacy allows infertile couples, single people and members of the LGBT community to become parents when they may not be able to have children otherwise.
• It allows one or both parents to be biologically related to their child
• Surrogacy gives hopeful parents the opportunity to raise a child from birth.
• Intended parents may face fewer restrictions with surrogacy than with adoption; those who cannot adopt due to agency restrictions on factors like age can still pursue surrogacy.

Reasons for Increase of Surrogacy in India

• Low cost: Surrogacy cost in India is around 1/3rd of that in developed countries like the USA.
• This had made India a favourable destination for foreign couples who look for cost-effective treatment for infertility through Surrogacy in India
• Availability of women who could rent their womb at low cost, primarily due to their own poor income levels
• Grey Area: Surrogacy was not regulated by a specific legislation which allowed private sector to grow rapidly
• Availability of Technology at affordable cost also aided the growth of the sector

Issues with Surrogacy in India

• There had been many cases of death related to surrogacy which neither commissioning parents nor the doctors were ready to take responsibility of.
• Sometimes, Indian adoption laws or citizenship laws of some other countries also create problems. For example, Germany gives citizenship by mother; this creates issues in determining the nationality of child.
• There were no strong laws for following issues such as rights of surrogate mother for fair compensation, maternal health care, right to abort etc.
• Surrogacy leads to commoditization of the child. Renting of the womb breaks the bond between a mother and the child, interferes with nature

Recommendation of the Rajya Sabha Select Committee

• Definition of “infertility” as the inability to conceive after five years of unprotected intercourse should be deleted. It is too long a period for a couple to wait for a child.
• It was recommended that a surrogate mother need not be a “close relative
• Single women (widow or a divorcee) should be allowed to avail of surrogacy.
• The insurance cover for a surrogate mother should be increased to 36 months from 16 months.

Key Features of the Surrogacy (Regulation) Bill, 2020

• It bans commercial surrogacy
• It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
• It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation
• Only Indian couples can opt for surrogacy in the country.
• The Bill also seeks to regulate the functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.
• It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The newborn child shall be entitled to all rights and privileges that are available to a natural child.
• The Bill seeks to regulate functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.
• It also specifies that no sex selection can be done when it comes to surrogacy.

Concerns

• The bill states 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.
• The Bill leaves out a lot of people who might want to have a baby through surrogacy, including unmarried couples, homosexual couples and single men and women.
• Banning of Commercial Surrogacy: The livelihood of poor women who are engaged in this sector will get compromised and will further push them into illegal underground activities

Way forward

• Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.
• 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).
• Surrogacy should be made inclusive for all class of people irrespective of their sexuality