commercial surrogacy

commercial surrogacy

News:

The Lok Sabha passed a Bill banning commercial surrogacy with penal provisions of jail term of up to 10 years and fine of up to ₹10 lakhs.

Important Facts:

• 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.

Legal Background:

• 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 228th report of 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, 2016 was introduced in Lok Sabha on November, 2016

Key Features of the Bill

• Purposes for which surrogacy is permitted
  • The Bill prohibits commercial surrogacy, and allows altruistic surrogacy.
  • The Bill permits surrogacy when it is:
    • For intending couples who suffer from proven infertility
    • Altruistic
    • Not for commercial purposes
    • Not for producing children for sale, prostitution or other forms of exploitation
    • For any other condition or disease specified through regulations.
  • Parentage and abortion of surrogate child
    • A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
    • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority. Further, this authorisation will have to be compliant with the Medical Termination of Pregnancy Act, 1971.
  • National and State Surrogacy Boards
    • The central and state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively. Functions of the NSB include
    • Functions of the SSBs include: (i) monitoring the implementation of the provisions of the Act; and (ii) reviewing the activities of the appropriate authorities functioning at the state/union territory level.
  • Offences and penalties
    • The Bill creates certain offences which include:
      • Undertaking or advertising commercial surrogacy.
      • Exploiting the surrogate mother
      • Selling or importing human embryo or gametes for surrogacy. These offences will attract a penalty of 10 years and a fine of up to 10 lakh rupees.

Critical Appraisal of the Bill

• Ban on Commercial Surrogacy: In the expanding era of human rights jurisprudence, one can trace the foundation of right to use surrogacy and be an intended couple as a part of Right to Personal liberty, right to Procreation, right to Found a Family and right to privacy
• Medical Condition – The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
• Close Relative Clause – The surrogate mother must be a ‘close relative’ of the intending couple. The Bill does not define the term ‘close relative’.  Further, the surrogate mother (close relative) may donate her own egg for the pregnancy.  This may lead to negative health consequences for the surrogate baby.
• Maternity Relief: The issue of maternity relief for intended couple as well as the surrogate mother has already been discussed by different High Courts in India. However, the Bill is silent about this issue.
• Same Sex Provision – In this Bill, there is no mention of same sex despite LGBT community has been accepted to be a part of the mainstream after SC judgement on section 377.
• Exploitation – The proposed ban on commercial surrogacy will prevent those women from acting as a surrogate and thereby obtain the required money. It may force such women to do other illegal acts such as prostitution or theft for finding the money.
• Excessive Delegation of Power – The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. Further, it allows additional conditions to be prescribed by regulations.  This may be excessive delegation of legislative powers.
• Time Limit – The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify a time limit within which such certificates will be granted.   It also does not specify an appeal process in case the application is rejected.
• Breach of Surrogacy Contracts: The Bill is silent about the issue of a beach of terms and conditions of surrogacy by surrogate or indented couple during the surrogacy process or afterwards.

Major impact:

• The Act will regulate the surrogacy services in the country and will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.
• While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfillment of certain conditions and for specific purposes.
• All Infertile Indian married couple who want to avail ethical surrogacy will be benefitted. Further, the rights of surrogate mother and children born out of surrogacy will be protected.

Conclusion.

• The proposed ban imposed by the Bill on commercial surrogacy and exclusion of foreign couples from availing surrogacy services are considered as the biggest flaw of this Bill.
• The Bill could have provided a framework for establishing an effective mechanism for ensuring that surrogacy contracts are made properly by the parties and are not discriminatory or adversely affecting the interests of the surrogate women.
• The possibility of exploitation of surrogate woman and protection of interests of surrogate and surrogate child could have been effectively ensured through proper framework.