[Answered]“India had emerged as a hub of commercial surrogacy for couples in recent times, benefiting especially poor.” In light of this critically examine ‘The Surrogacy (Regulation) Bill, 2019’.

The Surrogacy (Regulation) Bill, 2019 seeks to ban commercial surrogacy and intend to make it an entirely altruistic alternative, making surrogacy completely altruistic practice in India, with no emphasis on commercial interests. The Bill intend to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

Features of the Surrogacy (Regulation) Bill, 2019:

1. It provides for constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
2. It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for female and 26-55 years for male.
3. Only Indian couples who have been legally married for at least 5 years would be allowed to opt for surrogacy.
4. It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy. It also provides that intending couples should not abandon the child born out of surrogacy under any condition.
5. It also stipulates a separate eligibility criterion for the surrogate mother.
6. The surrogate must be a close relative of the intending couple and be a married woman having a child of her own.
7. She should between the age of 25-35 years, not have been surrogate earlier and must be certifiably mentally and physically fit.
8. On the legal status of a surrogate child, the Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple.
9. The new born child shall be entitled to all rights and privileges that are available to a natural child.
10. The Bill also seeks to regulate functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.

What are the issues related to Surrogacy (Regulation) Bill 2019?

1. Currently, Surrogacy in India is legitimate because no Indian law prohibits surrogacy. However, Surrogacy (Regulation) Bill 2019 seeks to prohibit commercial surrogacy and provide only for Altruistic surrogacy.
2. The Bill specifies that the intending couples should be married Indian couples. There is no mention of Non-Resident Indians working or studying abroad who may want to come back home to have a baby.
3. The Bill leaves out a lot of people who might want to have a baby through surrogacy, including unmarried couples, homosexual couples and single men and women.Having a child is a basic human right.
4. The Judiciary in India also has recognized the reproductive right of humans as a basic right.If the reproductive right is basic constitution right then the right to have a child through surrogacy should also be a basic constitutional right.
5. The Bill further clarifies that any form of monetary compensation or advertising about the act of surrogacy is a punishable criminal offence.But due to this, the livelihood of poor women who are engaged in commercial surrogacy will get compromised.
6. Only Indian couples who have been legally married for at least five years would be allowed to opt for surrogacy, as per the bill. It is not mentioned that why should a couple have to wait for five years after marriage, and what is the definition of a legally married couple.
7. Past experience of anti abortion laws suggest that complete banning on commercial activities may not be successful.
8. There is also the issue of in-vitro fertilisation and recruitment of surrogate mothers from other countries who would be implanted with the embryo in India by an infertility specialist, and then would be flown back to their own country.
9. It will be difficult for enforcement agencies to distinguish surrogate mothers in hospitals from other pregnant women.

Way forward:

1. For surrogacy to happen, we need embryos, and embryos are cultured in various In-Vitro Fertilisation (IVF) laboratories. So regulation of surrogacy must be preceded by law on Assisted Reproductive Technology (ART).
2. Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.
3. Right to privacy of donor as well as surrogate mother should be protected.
4. Surrogacy should be made inclusive for all class of people irrespective of their sexuality
5. The Surrogacy (Regulation) Bill 2019 cements the ban on commercial surrogacy, but it fails to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child.

There were multiple reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets. Surrogacy Bill 2019 intend to stop these practices with an aim to make surrogacy completely an altruistic practice than a commercial business which it may fail to completely end. But it will surely put a check on commercial exploitation promoting altruistic cause.