1. Discuss what is Surrogacy and issues around it
2. Mention provisions of the Surrogacy Bill
3. Analyse its positives and shortcomings
4. Give your opinionalong with the improvement, if any, in the bill.
Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the new-born child's parent(s) after birth. India has been a preferred destination for those wanting a surrogate child. A study conducted by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.
The issues related to Surrogacy in India are as follows-
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.
Question of parentage: In case of three parents for a surrogated child- Each of the donors, surrogate mother, commissioning parents, question of who are the parents, what rights do the children have against each of them, and more largely remained unaddressed.
The number of times surrogacy is permissible is not clear, consent of married husband is not required.
Homosexuals and single parents are not allowed to go for surrogate mothers.
There had been few cases in which commissioning parents left surrogate mother because they did not like the surrogated child.
There have been instances where girls and women were forced to become surrogate
There were no rules for medical insurance for issues that could arise in the pregnancy or later, and also the insurance to cover the child’s upbringing if the surrogate mother is abandoned by the legal parents.
The research states that clinics do not provide the mother with a copy of the contract that is signed by the adoptive parents. In order to escape social stigma, pregnant women often stayed in shelter homes that provided them with lesser security and assistance than required.
ICMR guidelines (2005) did not set accountability within the agencies indulged in providing surrogate mothers; they did not properly address the issues of sex selection.
Following are the features of the Surrogacy (Regulation) Bill, 2019
It provides for constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for female and 26-55 years for male.
Only Indian couples who have been legally married for at least 5 years would be allowed to opt for surrogacy.
It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy. It also provides that intending couples should not abandon the child born out of surrogacy under any condition.
It also stipulates a separate eligibility criterion for the surrogate mother.
The surrogate must be a close relative of the intending couple and be a married woman having a child of her own.
She should between the age of 25-35 years, not have been surrogate earlier and must be certifiably mentally and physically fit.
On the legal status of a surrogate child, the Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple.
The new born child shall be entitled to all rights and privileges that are available to a natural child.
The Bill also 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.
The Bill provides for various safeguards for surrogate mothers. One of them is insurance coverage for sometime to cover not only the period of pregnancy but after that also.
It also specifies that no sex selection can be done when it comes to surrogacy.
However, following are the concerns that remain related to Surrogacy (Regulation) Bill 2019 are as follows-
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.
Exclusionary: 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.
The Bill further clarifies that any form of monetary compensation or advertising about the act of surrogacy is a punishable criminal offence.
o But due to this, the livelihood of poor women who are engaged in commercial surrogacy will get compromised.
There is a mention of regulation on ‘donor eggs’ in the Surrogacy Bill, however, there is no concrete law regulating assisted reproductive technologies.
Due to the prevalence of clandestine ART clinic, it is hard to regulate commercial surrogacy, this accompanied by prohibited commercial surrogacy will further lead to the exploitation of women.
BIll also prohibits ‘fashion surrogacy’ as only the couple who are infertile can opt for surrogacy.
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.
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
Surrogacy industry in India is fully grown today. Banning it at this stage may create implementation challenges and push the business underground. A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required.