1. List the provisions of the law
2. Discuss why it has several limitations in terms of social economic dimensions when it comes to surrogacy in India.
3. Provide alternative views to the stand taken by the bill.
The Surrogacy (Regulation) Bill 2019 was introduced in the Lok Sabha with to facilitate altruistic surrogacy in the country. The government claims that regulating surrogacy will put an end to rampant commercialisation of the practice.
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 eligibilitybefore going ahead with surrogacy. It also provides that intending couples should not abandon the child born out of surrogacy under any condition.
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 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.
The Need for Regulation of surrogacy in India are as follows-
Low cost: Surrogacy cost in India is around 1/3rd of that in developed countries like the USA, which led a whole branch of medical tourism has flourished on the surrogate practice.
Surrogacy led to commoditization of the child. Renting of the womb breaks the bond between a mother and the child, interferes with nature and in many cases leads to exploitation of both poor women and the child Born.
Middlemen and clinics: Surrogates have been reported to be exploited by the agents or the middlemen. There has not been any process to monitor the clinics or any law to ensure that the mothers are not defrauded by the clinics or the intending couples.
Negligence and lack of care: The surrogates mothers are not given good food or medical treatment and postpartum care are non-existent.
However, the Surrogacy bill has failed to addresses all the socio-economic dimensions of the problem which are follows-
1) Economic issues-
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. Thus, it will affect the medical tourism and thereby foreign exchange.
The Bill further clarifies that any form of monetary compensation or advertising about the act of surrogacy is a punishable criminal offence. But due to this, the livelihood of poor women who are engaged in commercial surrogacy will get compromised.
Surrogacy Black Market: Critics are of the opinion that a complete prohibition of commercial surrogacy would result in a surrogacy black market underground thus making conditions even more unsafe for surrogate mothers.
2) Social issues-
It prevents same sex couples from having surrogate children even though there is a credible scientific research to show that same sex parents are as good as hetrosexual parents, thus violating the Article 14 of the Constitution.
The Bill also violates the Puttaswamy judgement of the Supreme Court (Right to privacy was added in the list of fundamental rights guaranteed by the Constitution).
The eligibility condition under the Bill amounts to unreasonable restriction on the reproductive rights of a married Indian couple, violative of Article 21 of the constitution.
Since there is absence of compensation, it is like “forced labour” because non-payment of any compensation is against Article 23 of the Constitution of India.
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
The Surrogacy (Regulation) Bill 2019 cements the ban on commercial surrogacy, but it fails 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. Just the removal of the commercial aspects in the current surrogacy arrangements does not remove the chances of exploitation. So the rights of surrogate mother and child born must comprehensively be formulated, along with that ART must be regulated thoroughly.