[op-ed snap] Our notions of motherhood
The Lok Sabha passed the Surrogacy (Regulation) Bill 2019. to regulate the practice of surrogacy in India and allow only “ethical altruistic surrogacy”.
- Heavy reliance on criminal law for managing social issues, criminalisation of choice and prejudiced ideas of what constitutes a family.
- Disallows single, divorced or widowed persons, unmarried couples and homosexual couples from pursuing surrogacy to have children.
- It stipulates that only a man and woman married for at least five years, where either or both are proven infertile, can avail of surrogacy.
Why the provisions are discriminatory
- India’s jurisprudence recognises the reproductive autonomy of single persons, the rights of persons in live-in relationships and fundamental rights of transgenders.
- In Navtej Singh Johar vs Union of India, Supreme Court decriminalised consensual same-sex between consenting adults and held that the law cannot discriminate against same-sex partnership.
- Single persons have the right to adopt children in India.
- Guidelines issued by Indian Council of Medical Research in 2002 and the draft Assisted Reproductive Technologies (Regulation) Bills 2010 and 2014 had permitted commercial surrogacy
- 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.
- A ban on commercial surrogacy stigmatises this choice and reinforces the notion of the vulnerable “poor” woman who does not understand the consequences of her decisions and needs the protection of a paternalistic State.
- In our patriarchal society, it can be expected that young mothers will be coerced into becoming surrogates for their relatives. The Bill moves the site of exploitation into the private and opaque sphere of the home and family.
- The shift to altruistic-only surrogacy was made in the context of reports about cases of surrogate babies being abandoned and exploited
- Problems of surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children.
- PIL in Jayashree Wad vs Union of India sought to end commercial surrogacy in India. Based on court judgement, the government declared that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy.
- There is a danger of exploitation and abuse in commercial surrogacy.
- Exploitation takes place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. This can be addressed by a strong regulatory mechanism with transparency and mandating fair work and pay for the surrogate mothers.
- Viewing commercial surrogacy as inherently exploitative and banning it expands the potential for exploitation as it would force the business underground.
- 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.
Surrogacy is an important avenue for persons to have a child through a willing surrogate mother who can also benefit monetarily from the process.
The Surrogacy (Regulation) Bill, 2019
The Lok has passed the Surrogacy (Regulation) Bill, 2019 by a voice vote.
The Bill seeks to ban commercial surrogacy and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of authorities for its regulation of practice and processes.
The Bill defines surrogacy as a practice 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.
Regulation of surrogacy
The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
Purposes for which surrogacy is permitted
Surrogacy is permitted when it is:
for intending couples who suffer from proven infertility;
not for commercial purposes;
not for producing children for sale, prostitution or other forms of exploitation; and
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.
A certificate of essentiality will be issued upon fulfillment of the following conditions:
1. a certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
2. an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
3. insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
1. the couple being Indian citizens and married for at least five years;
2. between 23 to 50 years old (wife) and 26 to 55 years old (husband);
3. 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
4. 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:
a close relative of the intending couple;
a married woman having a child of her own;
25 to 35 years old;
a surrogate only once in her lifetime; and
possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.
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;
1. granting, suspending or cancelling registration of surrogacy clinics;
2. enforcing standards for surrogacy clinics;
3. investigating and taking action against breach of the provisions of the Bill;
4. 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:
1. undertaking or advertising commercial surrogacy;
2. exploiting the surrogate mother;
3. abandoning, exploiting or disowning a surrogate child; and
4. 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.
[op-ed snap] Great expectations: on Surrogacy Bill
Surrogacy needs to be regulated by law.
Need for the law
- The issue of surrogacy is fraught with bioethical issues
- Regulations in the past in the area of child adoption and transplantation of human organs have borne fruit, putting an end to rampant commercial transactions
- Flagrant violations of human rights have been witnessed repeatedly in the ‘baby-making factory’ in India – mostly with underprivileged women in the crosshairs and at the bottom of the pile.
- Unregulated assisted reproductive techniques (ART) clinics mushroomed
- India became a global health-care destination and there is a good volume of traffic toward the country along with growing domestic demand for surrogacy services
The bill should balance the purpose of regulating the complex area of surrogacy, while sensitively balancing the needs of ‘intending parents’ and surrogates.
Provisions of the bill
- The Bill mandates payment to the surrogate mother, who can only be a ‘close relative’, to the extent of covering medical expenses and providing insurance during the term of the pregnancy.
- It has specified that ‘exploiting the surrogate mother’ would attract punishment of imprisonment of up to 10 years and a fine of up to ₹10 lakh
- Advertising for surrogacy and selling/importing human embryos or gametes for surrogacy also attract the same punishment.
- It has mandated registration of surrogacy clinics and put in place regulatory boards to ensure compliance with the law.
- Lack of specifics in definitions
- generalized ‘close relative’ criterion for surrogates
- the exclusion of various groups of people from access to surrogacy: only married couples of a certain age group are eligible
- seeking to regulate surrogacy before setting the ART house in order
- The capacity of the state to end commercial surrogacy may itself be compromised if it does not first set up a regulatory framework for ART clinics, which provide the basic technology for surrogacy
Cabinet clears Bill banning Commercial Surrogacy
- The Union Cabinet has approved the introduction of the Surrogacy (Regulation) Bill, 2019 to ban commercial surrogacy in India.
- 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 Commission of India has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.
What is Surrogacy?
- Surrogacy is considered one of many assisted reproductive technologies.
- It is an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for another person(s) who is or will become the parent(s) of the child.
- People may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks are too dangerous for the intended mother, or when a single man or a male couple wishes to have a child.
About the Bill
- The Bill proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and UTs.
- It aims to prohibit commercial surrogacy and allows surrogacy services only for married Indian couples who have no children.
Why such bill again?
- The Bill had been passed by the 16th Lok Sabha but lapsed after it did not clear the Rajya Sabha.
- There have been several reports about the exploitation of surrogate mothers, who are confined to “hostels” during pregnancy.
- They are not allowed to meet their families and were forced to do it for a paltry amount, putting their own bodies at risk.
- The benefits of the Act would be that it will regulate the surrogacy services in the country.
- While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the infertile couples will be allowed on fulfillment of conditions.
- It will also prohibit exploitation of surrogate mothers and children born through surrogacy.
Assist this newscard with:
Explained: Altruistic Surrogacy
Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections
From the UPSC perspective, the following things are important:
Prelims level: Surrogacy (Regulation) Bill, 2016
Mains level: Various laws for the protection of women from exploitation
What is an altruistic surrogacy ?
- According to the new Surrogacy (Regulation) Bill, it includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.
- This line separates altruism from the commercial tinge that surrogacy carries with it.
Reasonable Expenses to Surrogates
- In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
- The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilization (IVF) but may include other ‘expenses’.
Defining Motherhood in such cases
- Altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
- In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.
Role of the surrogate
- As per the new Surrogacy Bill, the surrogate in India continues to fulfill her role as a gestate.
- In keeping with the gestational surrogacy, the current Bill is faithful to the ICMR’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
- The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
- The relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.
Altruistic vs. Commercial Surrogacy
- The commercial surrogacy arrangement in India was an exchange of money for services: and yet, clinics and surrogacy agents went to great lengths to transform the commercial elements.
- These elements included were primarily identified as the surrogate’s fees, into gift-giving, and sacrifice.
- In that sense, altruistic surrogacy is not very different from its opposite commercial variant.
- Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
- Here, kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
- Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.
A Parallel Case in Organ Donations
- Let’s look at the Transplantation of Human Organs Act (THOA), 1994, as a parallel to the conversation on altruism and its linkages with commercial surrogacy.
- The Act prescribes that organ donors are allowed to donate their organs before death only to ‘near relatives’.
- Donating organs to ‘strangers’ or not near relatives before death is not allowed, and may be approved of only through the authorisation committee.
- The category of the ‘near relative’ appears again in a similar vein to the ‘close relative’.
- But unlike the Surrogacy Bill, the THOA identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.
- It’s a closed group of relatives — within the structure of the nuclear family unit — members who may not be eligible to be surrogates, unfortunately.
Word of caution
- By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a murky turn.
- Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
- In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
- In facilitating altruistic surrogacy among close kin, we have to be wary of the kind of exploitation we are fostering.
[op-ed snap] Surrogacy Bill, then & now
Mains Paper 2: Governance | mechanisms, laws, institutions & Bodies constituted for the protection & betterment of these vulnerable sections
From the UPSC perspective, the following things are important:
Prelims level: Surrogacy (Regulation) Bill, 2016
Mains level: Various laws for the protection of women from exploitation
Surrogacy bill passed
- Lok Sabha has passed the Surrogacy (Regulation) Bill, 2016
- Cleared by the Cabinet in 2016, the Bill was subsequently referred to a Parliamentary Standing Committee (Health & Family Welfare) before its passage
What does the Bill aim to do?
- Drafted keeping in mind the “Indian ethos” the Bill allows only altruistic surrogacy (by relatives) for married couples
- It seeks to put an end to commercial surrogacy — payment to a surrogate mother is punishable by up to five years imprisonment — and also has safeguards built in against sex selection of the baby
- The Bill proposes to allow altruistic, ethical surrogacy to intending infertile Indian married couples between the ages of 23-50 (female) and 26-55 (male)
- It limits the option to only legally married childless couples who have been trying for a child for at least five years
- The commissioning couple cannot have a surviving child either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure
Need of the bill
- There have been several reports about the exploitation of surrogate mothers, women who are kept confined in “hostels” during pregnancy and not allowed to meet their families, women who do it repeatedly for a paltry amount thus putting their own bodies at risk. The Bill seeks to put an end to that
- Ballpark estimations by the Indian Council of Medical Research are around 2,000-odd babies per year through commercial surrogacy — when a woman is paid a pre-fixed sum for renting her womb
- CII figures say surrogacy is a $2.3 billion industry fed by lack of regulation and poverty
- The 228th report of the Law Commission had recommended prohibition of commercial surrogacy
- The Bill now requires all surrogacy clinics to be registered
- Clinics can charge for these services but the surrogate mother cannot be paid
- The national and state surrogacy boards will be the regulating authorities
Differences in the two versions of the bill
- There are changes, including a reduction of punishment
- The earlier version provided for a minimum jail term of 10 years for some offences; the present one sets a maximum of 10 years
- The present Bill forbids the surrogate mother to use her own gametes (eggs), gives her the option to withdraw before the embryo is implanted, and puts a condition for obtaining a “certificate of essentiality” that the intending couple needs —they must provide 16-month insurance coverage for the surrogate mother including postpartum complications
Standing committee recommendations
- Pointing out that the Supreme Court has recognised live-in relationships, the Standing Committee had recommended that the government “broadbase the eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, divorced women/ widows”
- It had countered the “altruistic surrogacy for married couples” argument and recommended that compensation be the norm and the word altruistic should be replaced with compensated
- Altruistic surrogacy, it observed, is tantamount to exploitation
Cabinet clears decks for National Surrogacy Board
Mains Paper 2: Governance | Issues relating to development & management of Social Sector/Services relating to Health, Education, Human Resources
From UPSC perspective, the following things are important:
Prelims level: Surrogacy (Regulation) Bill, 2016, National Surrogacy Board
Mains level: Issues and laws related to surrogacy
Surrogacy (Regulation) Bill, 2016
- The Union Cabinet gave its nod to the Surrogacy (Regulation) Bill, 2016, paving way for the regulation of surrogacy
- This will be done by setting up National Surrogacy Board at the center
About the legislation
- The proposed legislation aims to protect the rights of surrogate mother and children born out of surrogacy and will apply to the whole of India, except for Jammu and Kashmir
- Once enacted by the Parliament, the National Surrogacy Board will be constituted at the central level
- The states and Union Territories will constitute the State Surrogacy Boards and State Appropriate Authorities within three months of the notification by the Central Government
Expert view on surrogacy bill
- The surrogacy is being equated with indulgence and it is incorrect as it is most often the last resort for people wanting a child
- Illogical: Ban on renting a womb for money and allowing it only if the woman is doing so for altruistic reasons
- Why? It is not possible for all the needy couples to actually have someone who will be willing to be a surrogate
- It is a violation of the reproductive right of the surrogate mother
- The Bill even banned egg donation that would only ensure that a sizeable number of people seeking IVF treatment would not be able to take it up now
Surrogacy in India- a background
- In 2002, India became the first country to legalise commercial surrogacy
- The surrogacy debate started in India in 2008, when a two-week-old Baby was left stateless after the commissioning parents in Japan divorced during the pregnancy and the commissioning mother refused to accept the baby
- This led Gujarat HC to state that there is extreme urgency to push through legislation which addresses such issues
- Subsequently, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy
- And also, allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation
- By 2012, India had become the surrogacy capital of the world with surrogacy tourism valued at approximately $500 million annually
Govt views on certain issues in surrogacy bill
- Homosexuals: Each country has to make laws that are aligned with our values, as per a legal framework & homosexual couples are not recognised by law in India
- Exploitation: Rich people outsource pregnancies to poorer women because their wives cannot go through labour pain
- Already having children: We have put a complete stop to celebrities who are commissioning surrogate children like a hobby, despite having biological ones
Key provisions of Surrogacy (Regulation) Bill, 2016- II
- A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses
- Surrogacy regulation board will be set-up at Central and State-level.
- Further, the Bill mandates that women acting as surrogates can do so only once
- Also, all Assisted Reproductive Technology (ART) clinics will be registered
Key provisions of Surrogacy (Regulation) Bill, 2016- I
- Complete ban on commercial surrogacy
- Only legally-wedded Indian couples (for minimum 5 years) can have children through surrogacy
- Condition: At least one of them have been proven to have fertility-related issues
- Bars foreigners, overseas Indians, homosexual couples, people in live-in relationships and single individuals
Surrogacy bill gets the Cabinet nod
- Surrogacy (Regulation) Bill, 2016 aims at regulating commissioning of surrogacy in the country in a proper manner
- 2009 Law Commission: Recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation
- The artificial reproduction treatment industry is valued at Rs. 25,000 crore
- The Bill aims to prevent exploitation of women, especially those in rural and tribal areas
- Promises to ensure parentage of children born out of surrogacy is legal and transparent
- Will apply to the whole of India, except Jammu and Kashmir