Recently Lok Sabha has passed the Surrogacy (Regulation) Bill which if passed by Rajya Sabha will put a blanket ban on commercial surrogacy in India. According to this bill, a couple can only opt for altruistic surrogacy where the surrogate mother must be a relative of the intending couple. The bill is passed with the objective of preventing the exploitation of surrogate mother caused due to affordable commercial surrogacy arrangement in India which has made India a global commercial hub for surrogacy. But according to this bill, only couples who are married for more than five years can undergo the surrogacy arrangement and the bill doesn’t incorporate homosexuals, transgenders, live-in-couple and a single person in the definition of “intending parents”. Despite the fact, SC in “Navtej Singh Johar v UOI” decriminalized homosexuality and gave recognition to homosexuals and in 2015, in “NALSA v UOI”, SC recognized transgenders as third genders, this bill deprives transgenders and homosexuals to become a parent through surrogacy. The bill having many loopholes makes the arrangement of altruistic surrogacy very stringent.
What Is Surrogacy
Motherhood is considered to be the most precious gift that nature has endowed upon women. However, due to many medical reasons, not every woman can carry a child. While adoption is one process where a couple can adopt a child but the couple who wants their children to be genetically related to them go for surrogacy as surrogacy is one such process where a child can be genetically related to the intending couple. Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child. A couple enters into surrogacy arrangement when due to medical impossibility a couple can’t procreate, or when pregnancy poses a greater risk to woman’s health, or when a man or woman lives alone or a homosexual couple wants to adopt a child. Surrogacy arrangement can be altruistic where there is no involvement of consideration and the intending couple doesn’t pay anything to surrogate mother except the medical expenditure incurred by the surrogate mother related to pregnancy whereas commercial surrogacy involves consideration given by couple to the surrogate mother. India is known worldwide for its cheap and affordable surrogacy arrangement. The medical expenses that are incurred in India and the price paid to surrogate mother are way too less than that of any other countries in the world making India the first choice of any couple for surrogacy arrangement. Couples who can’t afford to have a child through surrogacy arrangement ends up being in India due to affordability, thereby making India favourite destination for cheap and affordable surrogacy arrangement.
Surrogacy arrangement poses some of the biggest legal and ethical issues on the rights of the surrogate mother, child and the intending couple. There are greater chances of exploitation of surrogate mother as in many cases the intending couple later denies to take the child resulting in the abandonment of the child and hardships for a surrogate mother. In the landmark case of Baby Manji Vs UOI, where Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese couple, before one month from delivery the Japanese couple divorced. After that, it became difficult to determine the parentage and nationality of the baby. Neither the Japanese lady nor the surrogate mother wanted to take the baby and Japanese man was denied to take the child by the Indian laws which had no provision for children born via surrogacy, finally, the baby was given to her grandmother. In such cases, it becomes difficult to decide parentage of the child and usually, commercial surrogacy poses such issues. Thereby, in light of such issues, the new surrogacy bill is passed but the bill has overlooked many objectives that surrogacy serves.
Major Highlights of Bill
The bill deprives many couples to undergo surrogacy arrangement as according to his new bill there are certain eligibility criteria for intending couple and surrogate mother and only when a couple comply with those criteria they can undergo surrogacy arrangement. Some of the major highlights of the bill are-:
- According to the bill, the intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. Therefore, the bill bans any foreign couple to undergo surrogacy process in India.
- The bill only permits surrogacy for couples where a woman can’t conceive a child. Therefore, surrogacy would not be allowed in cases where a woman has any medical condition which can prevent her from giving birth.
- According to this bill, the surrogate mother must be a close relative of the intending couple who has been married and has had a child of her own. However, the bill doesn’t specify who all can come under “close-relative”.
- The bill restrains any consideration or payment given by the intending couple to the surrogate mother except the necessary medical expenses incurred during the pregnancy of the surrogate mother.
- Under this bill, the surrogacy clinics would be registered and the national and state surrogacy boards would regulate the authorities for the practice.
- The surrogate child will be deemed to be the biological child of the intending couple.
- The bill purports the Central and State government to appoint appropriate authorities to grant eligibility certificates to the intending couples and the surrogate mother. However, the bill doesn’t specify the time limit within which such certificates will be granted.
- The bill restrains producing children for prostitution or any form of exploitation.
- Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for ten years and a fine up to Rs 10 Lakhs.
Eligibility Criteria For Intending Couple
The intending couple should have a ‘certificate of essentiality’ and a certificate of eligibility’ issued by the appropriate authority. Certificate of essentiality would be given to the couple after they fulfil the following conditions -:
- The couple must give a certificate of infertility of either spouse or both.
- An order passed by the magistrate court regarding parentage and custody of the surrogate child.
- Insurance coverage for the surrogate mother.
Whereas the certificate of essentiality is given on fluffing the following conditions-:
- The couple must be an Indian citizen and married to each other for at least five years.
- The age of the wife must be between 23 to 50 year and the age of the husband must be between 26 to 55 years.
- The couple must not have any child( biological, adopted or surrogate) living at the time of undergoing surrogacy arrangement except if the child is suffering from any physical or mental disability or from any life-threatening disease.
Eligibility Criteria For Surrogate Mother
The surrogate mother must have a certificate of eligibility given by the appropriate authority upon fulfilment of following conditions-:
- The surrogate mother must be a close relative of the intending couple
- The surrogate mother must be a married woman having her own child.
- The surrogate mother between 25 to 35 years old
- And she must have a certificate of medical and psychological fitness.
Drawbacks Of The Bill
- According to this bill, only those couple who are infertile or when the woman is not able to conceive can undergo the surrogacy arrangement thereby completely out looking those cases where a woman is not able to give birth due to various other medical conditions. For instance- there can be cases where a woman is able to conceive but can’t bear the child due to reasons like multiple miscarriages etc.
- According to this bill, only a close-relative can become a surrogate mother. However, the bill doesn’t mention that who can come under the ambit of a close relative. Moreover, the bill specifies the age of surrogate mother between 25 to 35 years which makes it highly improbable as any relative in such a young age would be reluctant to become a surrogate mother. Therefore, the intending parents would undergo a lot of struggle in finding the surrogate mother in closed relatives.
- According to this bill, only a married couple is eligible for surrogacy thereby prohibiting single parents, an unmarried person, homosexuals, transgenders and live-in-couples from undergoing surrogacy arrangement. As India doesn’t even provide for adoption rights to transgenders and homosexuals, banning surrogacy would close all the doors for transgenders and homo-sexual to become a parent.
- The bill states that for the abortion of the surrogate child, written consent of the surrogate mother and the authorization of the appropriate authority which must be in consonance with the Medical Termination of Pregnancy Act, 1971. But for the abortion of the surrogate child consent of intending parents doesn’t matter and there is no say of intended parents.
- The intending couple and surrogate mother needs to have a certificate of eligibility and essentiality from the appropriate authorities. However, the bill doesn’t specify the time limit within which the certificate can be given. Also, the bill doesn’t specify any review or appeal procedure in case the surrogacy applications are rejected.
While surrogacy is considered to be a boon for the couple who can’t afford to have their own child, the misuse of the surrogacy arrangement in India can’t be denied which ends up in the exploitation of surrogate mother and the child. Though the fact that the commercial surrogacy is being misused is not denied but putting an absolute ban on commercial surrogacy would only increase the hardship of couple who can’t afford altruistic surrogacy. Moreover, the criteria laid down by the new bill carve out many people from the definition of intending parent which would defeat the whole purpose of surrogacy. For checking misuse of commercial surrogacy there must be a strict penalty for those who end up exploiting surrogate mother and baby. Instead of absolutely banning the commercial surrogacy, executives should ensure that it’s not being misused and efforts should be done to avoid exploitation of surrogate mother.