The Parliament has recently passed Surrogacy (Regulation) bill, 2016 which seeks to ban all forms of commercial surrogacy in India.
What is Surrogacy?
Surrogacy is the practice of bearing a child by a woman on behalf of another woman or a couple who does not want to conceive. It is one of the methods under assisted reproductive technology (ART).
Surrogacy in India has been unregulated by law till date. The only guidelines for surrogacy are those provided by the Medical Council of India.
Types of Surrogacy
1. On the basis of Selection of Surrogate Mother:
Altruistic surrogacy: Where the surrogate mother receives no financial rewards for her pregnancy or the relinquishment of the child to the genetic parents except necessary medical expenses. This usually happens when the surrogate mother is a relative.
Commercial surrogacy: Where the surrogate mother is paid over and above the necessary medical expenses. This usually happens when the surrogate mother is not related to the mother.
2. On the basis of Embryos:
Traditional Surrogacy: In this method, the surrogate mother carries the child for the full term and delivers it for the couple through artificial insemination. The surrogate mother is the biological mother of the child.
Gestational Surrogacy: In this, the eggs of the mother are fertilized with father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate. In this case the biological mother will be the one whose eggs are used and surrogate mother is called the birth mother.
Issues with Surrogacy:
Commercial surrogacy on a large scale has become exploitative for surrogate mothers who are mostly in an economically disadvantageous position.
Commodification of motherhood and life (of a child), as they become a part of an economic transaction.
Surrogacy is seen as propagating a patriarchal bloodline because in case of adoption, the blood relation part is missing. Hence it is preferred over adoption
Children are often abandoned by commissioning parents due to deformities, citizenship issues.
Health concerns: Child needs to be breast-fed for at least 6 months whereas mother needs a good post natal care, unavailability of which has led to the death of many surrogate mothers.
The concept of sacredness of motherhood as an institution is at stake with the commercialization of the womb.
Need for the Regulation
In 2008, a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave birth to a healthy baby girl. By then, the couple had separated and the baby was both parent-less and stateless, caught between the legal systems of two countries. The child is now in her grandmother’s custody in Japan, but has not obtained citizenship, as surrogacy is not legal in Japan.
Again, In 2012, an Australian couple who had twins by surrogacy, rejected one because the child had Down’s Syndrome and took home the other.
Surrogacy (Regulation) bill, 2016
It bans all forms of commercial surrogacy in India.
Altruistic surrogacy is permitted on the fulfillment of certain conditions.
Only childless couples who have been married for at least five years, provided that at least one of them is proven to have fertility related issues.
Married couples who have biological or adopted children, single people, live-in partners, homosexual persons would not be eligible to opt for surrogacy.
Foreign nationals, NRIs, OCIs etc won’t be allowed to commission surrogacy in India.
Childless or unmarried women would not be allowed to be surrogate mothers.
Surrogate mothers may only be close relatives, and they would be permitted only once to be a surrogate.
The rights of both the surrogate mother and children are protected as per the Bill.
The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories.
There is a complete ban on surrogacy in Germany, Italy, Singapore, Sweden. Altruistic surrogacy is allowed in UK, Canada, Denmark and in some Australian states. In some states of US, commercial surrogacy is allowed under highly regulated environment.
It aims to ensure better health and life of the surrogate mother by;
banning commercial surrogacy
bringing in altruistic surrogacy model
allowing a woman to be a surrogate only once in her lifetime.
The exploitation of women would be prevented especially of those who have no awareness about their rights.
It would curb child trafficking and illegal surrogacy racket by;
Prescribing the punishment and fine (10 years and upto 10 lakhs) for the undertaking of commercial surrogacy, abandonment of child, sell or import of a human embryo.
Banning the egg donation
It is the first comprehensive legislation on surrogacy which has created an institutional mechanism for the regulation of surrogacy at both central and state level.
With the strict provisions in the bill for surrogacy, Adoption can be another alternative to realize the parenthood with which the happiness of an orphan child and that of the couple can be ensured at the same time.
Limitations of the bill:
The bill proposes to ban all forms of commercial surrogacy. It shows a paternalistic attitude in which the government decides the good and bad for the citizens by depriving their freedom.
It makes surrogacy an issue of moral and ethics, when it is not.
The bill doesn’t recognize the natural right of a woman to bear children and her Constitutional right to work and earn wages.
The proposed provisions in the Bill might force the industry to go underground. Chances of unethical practices and corruption would be high in such a strict regulation.
It ignores the changing realities of modern society, where single parents is a reality.
It lacks vision and smacks of gender discrimination by taking away this right from same sex couples. Further, as per Article 14 of the Indian Constitution all citizens are equal before the law. By placing restrictions on the right to have a surrogate child such that it is accorded to heterosexual couples alone, the government has negated the equality that the Constitution guarantees to single parents and homosexuals.
As per Supreme Court ruling, live-in relationships are on a par with marriage and children born out of long-standing live-in relationships are legitimate. By limiting the option of surrogacy to legally married couples, the government is countering the acceptability of live-in relationships and setting a wrong precedent.
A close relative might be forced by the family members to become a surrogate mother for an infertile couple in the family.
In metro cities where nuclear family is a norm, it would be very difficult to find a relative who accept to be commissioned as a surrogate mother.
The stigma attached to surrogacy would also prevent anyone (among the relatives)t o come forward to be commissioned as surrogate mothers. This would reduce choices before a couple for finding commissioning Mothers.
The “adoption” could not be the remedy as the process is long and tedious. Also, the bloodline factor stops people to move from surrogacy to adoption.
The bill tries to address the concerns of two important stakeholders in the surrogacy industry- surrogate mother and surrogate child- to prevent their exploitation and to ensure their rights.The focus of the bill should have been twin – a) protecting the rights of the child and b) honoring the contract between the mother and commissioning parents. But by completely banning commercial surrogacy, the bill has given lopsided focus on the surrogate mother.Surrogacy industry in India is fully grown today.
Banning it at this stage may create implementation challenges, extortion by state authorities and push the business underground. A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required at this stage.
1. PRS Monthly Policy Review, August 2016
2. Press Information Bureau.
3. Why surrogacy bill is necessary?, Soumya Swaminathan, The Hindu, August 28, 2016
4. Surrogacy bill is long overdue. The Hindu Editorial, August 27, 2016
5. Unequal by law, Indian Express, column by Kapil Sibal, September 12, 2016
6. What’s wrong with the Surrogacy Bill, Nidhi Gupta, The Hindu Reads.
This Article is a part of ForumIAS Mains 2016 Initiative. For a list of all articles that will be published on ForumIAS Portal for Mains, visit https://forumias.com/portal/mains2016