Surrogacy (Regulation) Bill, 2016- A Critical Analysis

Context

Recently, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2016 and is set to be placed before the Rajya Sabha.

What is surrogacy?

• Surrogacy is an arrangement where a surrogate mother bears and delivers a child for another couple or person.
• Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive monetary compensation.
• A commercial gestational surrogacy agreement includes a pre-determined monetary compensation to the surrogate, in addition to covering medical costs, etc.

Surrogacy in India- Brief Background

• India is called the ‘world capital of surrogacy’ and it generates nearly 2 billion dollars annually inIndia.

Legal Status:

• Commercial surrogacy has  been  held  legal  in  India  as  witnessed  in  the  case  of  Baby  Manaji  Union  of  India  with the Supreme Court judgment. Similarly, in the case of Jan Balaz vs. Anand Municipality, the Gujarat High Court reiterated the SC Judgement.
• ICMR drafted the National Guidelines for Accreditation, Supervision and Regulationof AssistedReproductive Technology (ART) Clinics in India in 2005 as the first ever national guidelines for laying down standards of conductfor surrogacy in India.
• Later, the draft ART Bill was formulated in 2008, reviewed and redrafted in 2010and 2014 but was never passed as law

Need for Surrogacy (Regulation) Bill, 2016

1. Rampant commercialization: Critics have described the popularity of surrogacy arrangement in India as ‘baby booming business’, ‘womb on hire’, ‘baby firm’, ‘parenthood by proxy’ as it has turned a normal biological function of a woman‘s body into a commercial contract.
2. Exploitation of Women: Growing commercial surrogacy has often led to exploitation of poor, illiterate rural women who are often persuaded in such deals by their spouse or middlemen for earning easy money. Further, there has been no provision of insurance or post-pregnancy medical and psychiatric support for them.
3. Interest of Child: There are concerns over commodification of children born through commercial surrogacy, which is in violation of child rights. Major issues evolving around child rights include abandonment of surrogate babies, child trafficking across borders, and citizenship obstacles.
4. Misuse by Clinics: Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused bythe surrogacy clinic leading to unethical practices such as exploitation and human rights violation of surrogate mothers,and import of human embryos and gametes.
5. Boost to adoption: Strict regulation of surrogacy market in India would also help boost adoption of children.

The Surrogacy (Regulation) Bill, 2016

Objectives:

1. To regulate surrogacy services in the country;
2. To provide altruistic ethical surrogacy to the needy infertile Indian couples;
3. To prohibit commercial surrogacy including sale and purchase of human embryo and gametes;
4. To prevent commercialization of surrogacy
5. To prohibit potential exploitation of surrogate mothers and protect the rights of children bornthrough surrogacy.

Note:The Law Commission in its 228th Report in 2009 recommended for legalizing altruistic surrogacy and to ban commercial surrogacy.

Key Highlights of the Bill

1. The Bill prohibits commercial surrogacy, and allows altruistic surrogacy. It proposes to allow altruistic ethical surrogacy to intending infertile Indian marriedcouple between the age of 23-50 years and 26-55 years for female and male respectively.
2. The couples should be legally married for at least five years and should be Indian citizens.
3. The Bill permits surrogacy when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any other condition or disease specified through regulations.
4. The surrogate mother should be a close relative of the intending couple and should bebetween the age of 25-35 years.
5. An insurance coverage of reasonable and adequate amount shall be ensured in favour of thesurrogate mother.
6. The surrogate child will have the same rights as that of a biological child
7. All ART clinics will need to be registered
8. The Bill provides for setting up of a National Surrogacy Board and State Surrogacy Boards
9. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, and selling/import of human embryo have all been categorized as relations that are punishable by a jail term of max. 10 years (as per 2018 amendment) and a fine of up to Rs. 10 lakhs

Note: The Surrogacy Bill was referred to the Department-related Parliamentary Standing Committeeon Health and Family Welfare for examination and report.

2018 Amendments

Major issues with the bill

1. Definition of ‘infertility’ restricted to failure to conceive:The Bill defines infertility as the inability to conceive after five years of unprotected sex or medical conditions preventing a couple from conception. This definition does not cover all cases in which a couple is unable to bear a child, such as weak uterus, multiple miscarriages, fibroids, hypertension and diabetes
2. ‘Close relative’ not defined:

• The Bill does not define the term ‘close relative’. Further, the definition limits the opportunity for couples who don’t have close female relatives of child-bearing age.
• The conditions of the Bill will also exclude inter-faith and inter-caste couples who don’t have their families’ support from opting for surrogacy

3. Absence of compensation:

• The parliamentary standing committee observes that that expecting a woman, that too, a close relative to be altruistic enough to become a surrogate and endure all hardships of the surrogacy procedure in the pregnancy period and post-partum period is equivalent to a form of exploitation.
• It further states that it is like “forced labour” because non-payment of any compensation is against Article 23 of the Constitution of India.

4. Exclusion of live-in couples and homosexuals: The bill completely prohibits single parents, gay and queer couples,“live-in” couples (whose rights have been recognised by the Courts in other judgements) from the option of surrogacy altogether.
5. 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.
6. Reinforcement of patriarchy: According to critics, keeping surrogacy within the family would, in a patriarchal set-up, reinforce the idea that a woman’s body is not her own. The likelihood of women being forced by family members to undergo surrogacy could increase and lead to worse form of exploitation than commercial surrogacy.
7. State Authority: The Bill is reflective of the state’s authority regulating the lives, bodies and behaviours of women and sexual minoritiesand one’s choice of family and procreation. Critics opine and this a violation of one’s right to freedom.
8. Arbitrary Restrictions:

• On surrogate mothers: The bill arbitrarily states that surrogate mothers can undergo the process of surrogacy only once.
• On couples: It states that the couple intending to adopt the child must consist of a female between 23 and 50 years, and a male between 26 to 55 years, and that the couple must have been married for at least five years before opting for surrogacy.

9. Violation of Privacy:According to the bill, in order to be eligible for surrogacy, the heterosexual, married couple needs a certificate of proven infertility. According to critics, the requirement of such a certificate is violative of the couple’s right to privacy

Way Forward:

1. The potential for exploitation of surrogate mothers is linked to the lackof regulatory oversight and lack of legal protection. This can be minimizedthrough adequate legislative norm-setting and robust regulatory oversight rather than a complete ban on commercial surrogacy.
2. In absence of any compensation, altruistic surrogacy appears to be another form of exploitation. Thus, it is important to have provisions for surrogate mothers to be adequately and reasonably compensated for their services.
3. Given that the Supreme Court has provided legal sanctity to live-in relationships and decriminalized homosexuality, there should be a broader eligibility criteria to include queer couples, live-in couples and even divorcees and widows.
4. The condition that the surrogate mother must a close relative of the intending couple has been subjected to widespread criticism and thus needs to examined keeping in mind the interests of all stakeholders.
5. The definition of infertility should be expanded considering the medical conditions which are becoming very common with changing lifestyles.