Surrogacy is the practice whereby one woman carries the child for another with the intention that the child should be handed over after birth. Such a surrogacy arrangement may be altruistic or commercial in nature. Altruistic surrogacy involves an arrangement where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy. Commercial surrogacy includes compensation (in cash or kind) paid to the surrogate mother, which exceeds the reasonable medical expenses associated with the pregnancy. Currently, commercial surrogacy is allowed for Indian citizens.
In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.
In 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India case highlighted the lack of regulation for surrogacy in India. In 2009, the Law Commission of India observed that surrogacy arrangements in India were being used by foreign nationals, and the lack of a comprehensive legal framework addressing surrogacy could lead to exploitation of poor women acting as surrogate mothers. Further, the Law Commission recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law to regulate matters related to surrogacy. In 2015, a government notification prohibited surrogacy for foreign nationals. The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019.
The Bill defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child after the birth to them. The Bill allows altruistic surrogacy which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother. Commercial surrogacy is prohibited under the Bill. This type of surrogacy includes a monetary benefit or reward (in cash or kind) that exceeds basic medical expenses and insurance for the surrogate mother.
In order to be eligible, the couple intending to commission a surrogacy arrangement must be a close relative of the surrogate mother. In addition, the couple has to prove that they fulfil all of the following conditions:
Additional eligibility conditions that the intending couple need to meet may be specified by regulations. It could be argued that the qualifying conditions should be specified in the Bill and not be delegated to regulations.
The Bill does not define the term close relative.
The surrogate mother, apart from proving that she is a close relative of the couple intending, also has to prove all the following conditions:
The Bill states that any child born out of a procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.
The intending couple and the surrogate mother can undergo a surrogacy procedure only at clinics that are registered with the government. To initiate the procedure, the couple and the surrogate mother need to possess certificates to prove that there are eligible. These certificates will be granted by a government authority if the couple and the surrogate mother fulfill all the conditions mentioned above. The Bill does not specify a time period within which the authority needs to grant the certificates. Further, the Bill does not specify a review or appeal procedure in case the application for the certificates is rejected.
The Bill specifies that any person who takes the aid of a doctor or a surrogacy clinic in order to conduct commercial will be punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees.
Offences such as (i) undertaking or advertising commercial surrogacy; (ii) exploiting or abandoning the surrogate mother or child; and (iii) selling or importing human embryo or gametes for surrogacy will attract a minimum penalty of 10 years and a fine up to 10 lakh rupees.
The legislation shows that the government is eager to impose a certain morality on others as the Bill excludes gay couples, single men and women, and unmarried couples who want a child. In doing so, the government overlooks the needs of many same sex couples and single parents.
Votaries of the ban have argued that commercial surrogacy is used for trafficking, and foreigners abandon children born through surrogates. Such violations should be addressed with an iron fist. However, has there been a comparison between the number of cases of misuse and those cases where families have benefited? Other practices are misused too, but they are all not banned.
The focus should be on the well-being of the surrogate. The intending couple should ensure financial enumeration, a sound insurance cover and regular health check-ups for the surrogate. The relevant parts of the process should be legally documented. To impose a ban where better regulation may have sufficed will only take the entire process underground. Tightening regulations would respect the interests of infertile couples who might have a chance to have a child. That would also respect the woman’s choice about how she wants to bear a child.
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