THE SURROGACY (REGULATION) BILL, 2019: BAN ON COMMERCIAL SURROGACY?

THE SURROGACY (REGULATION) BILL, 2019: BAN ON COMMERCIAL SURROGACY?

Introduction

Surrogacy means ‘the action of a woman having a baby for another woman who is unable to do so herself as defined in the Cambridge Dictionary. In India, commercial surrogacy is currently permitted as there is no law prohibiting the same. But in this scenario, there are numerous questions that open the ethical dilemma such as Who can be a surrogate mother? Is it right to allow commercial surrogacy? What kind of protection does a surrogate mother need from the intending parent’s couple and for how long period? Can a couple directly choose the route of surrogacy? And to answer all these questions, the Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan on 15th July 2019 in Lok Sabha.

The Bill was passed by Lok Sabha in the Monsoon Session on 5th August 2019 and thereafter, it was referred to Select Committee. The Select Committee gave its report wherein 15 changes were suggested.

Major Provisions Proposed

  • Permitted Purposes of Surrogacy – The Bill chooses to opt a mid-path as it prohibits commercial surrogacy but allows altruistic surrogacy. As defined in the Bill, ‘Altruistic Surrogacy’ means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative. On the other hand, Commercial Surrogacy means surrogacy undertaken for financial rewards in addition to medical expenses, insurance, etc. Apart from Altruistic, Surrogacy is permitted for intending couples who suffer from proven infertility. The Bill clearly prohibits undertaking surrogacy for the purpose of producing children for sale, prostitution, or other forms of exploitation.
  • Eligibility Criteria for Surrogate Mother – An intending couple must have a ‘Certificate of Essentiality’ and ‘Certificate of Eligibility’ issued by Appropriate Authority.

The Certificate of Essentiality will be issued on fulfillment of following conditions –

1. Certificate of proven infertility in favor of either or both members of the intending couple from a District Medical Board

2. An order passed by Magistrate’s Court of the parentage and custody of the child to be born through surrogacy.

3. Insurance coverage of 16 months covering postpartum delivery complications.

The Certificate of Eligibility is issued on fulfillment of the following conditions to the intending couple –

1. Must be a close relative of an intending couple.

2. Must be a married woman having her own child

3. Aged between 25 to 35 years

4. Can be a surrogate only once in her lifetime

5. Certificate of medical and psychological fitness for surrogacy.

The Select Committee in its report has suggested removing the eligibility criteria of only a close relative being a surrogate mother and favored the criteria of any willing woman to be a surrogate mother. The Committee submitted that the provision of a close relative would reduce the chances of finding the surrogate mother or it is not necessary that the close relative is geographically accessible. Also, the draft fails to take appropriate note of the reality of Indian society where there are least involved in the decision making of family matters, which is most likely to give rise to the situation where family women are forced to be a surrogate mother.

  • Surrogacy Clinics – Only the surrogacy clinics registered by the appropriate authority can undertake surrogacy related procedures. The surrogacy clinic will only be registered when the appropriate authority is satisfied that such clinic is in a position to provide such facilities and maintain such equipment and standards as may be prescribed by the appropriate authority.
  • National and State Surrogacy Boards – The National Surrogacy Board and the State Surrogacy Boards shall be constituted by the Central and State Governments respectively. The functions of the National Board are to advise the Central Government on policy matters relating to surrogacy, to review and monitor the implementation of the Act, to lay down code of conduct for persons working in surrogacy clinics, and supervise the State Surrogacy Boards.
  • The parentage of Surrogate Child – A child born from a surrogacy procedure will be deemed to be the biological child of the intending couple which means that the child will have all rights and duties as a natural child a couple has.
  • Abortion of Surrogate Child – For aborting a surrogate child, the written consent of the surrogate mother and the permission of the appropriate authority needs to be taken. It must be in compliance with the Medical Termination of Pregnancy Act, 1971. A surrogate mother can also withdraw her consent to act as a surrogate mother before the embryo is implanted in her womb.

The scenario in Other Countries

Every country has a different approach to the procedure of surrogacy. Some countries such as Russia, Ukraine, Columbia, and Iran allow commercial surrogacy, on the flip side, there are countries such as Italy, France, Japan, Sweden, Hungary, Switzerland, Spain which totally ban all procedures of surrogacy whether it is commercial or not.

But apart from these two straight forward approaches, there is a mid-way approach as well, wherein the commercial surrogacy is prohibited but altruistic surrogacy is allowed. The Countries that have adopted this mid-path approach are Australia, Canada, Israel, South Africa, New Zealand, Cambodia, Thailand, Nepal, Mexico, and the Netherlands.

India also seeks to establish a similar middle path between the extreme approaches through this Surrogacy (Regulation) Bill, 2019.

Conclusion

It can be concluded that the main motive of this Bill is to ban the practice of commercial surrogacy while not prohibiting the use of this procedure for an altruistic purpose. The Bill also strives to properly regulate the procedure of surrogacy by registering the surrogacy clinics and constitution of the National Surrogacy Board and State Surrogacy Board. It is believed that the Bill will prove to be a big step in the legal scenario of the surrogacy procedure, but the true effect of the Bill will only be analyzed after it is passed and implemented.

References

  • The Surrogacy (Regulation) Bill, 2019; Bill No. 156-C of 2019 on 05.08.2019.
  • The Surrogacy (Regulation) Bill, 2019, PRS Legislative Research.
  • Surrogacy: A liberal law on the anvil; Deccan Herald, 15 Feb 2020.
  • Cambridge Dictionary.
  • The Surrogacy (Regulation) Bill, 2019: A casual approach to a serious concern, Business Today, 15 August 2019.
  • Rajya Sabha members seek changes in surrogacy bill overage, eligibility, 5 years marriage norms.