Insights into Issues: Surrogacy (Regulation) Bill, 2016

Insights into Issues: Surrogacy (Regulation) Bill, 2016

Status Quo on Surrogacy

India has become the hub for surrogacy.  In 2002, India had become the first country to legalize commercial surrogacy. By 2012 India had become the surrogacy capital of the world with surrogacy tourism valued at 400mn$ annually (according to a UN 2012 report). There are various reasons for it:

• In developed countries in general, surrogacy is permitted only among relatives
• In India, because of financial reasons, there is an availability of those who are willing to be surrogates
• India also offers low cost advanced medical facilities which attract a lot of medical tourism in general and surrogacy in particular
• There are no religious barriers against the concept of surrogacy
• There is no law that deals with various aspects of surrogacy. At present, it is governed by the Indian Contract Act. There are guidelines of ICMR which are not enforced properly. The absence of regulations and guidelines has led to a thriving industry of reproduction clinics and surrogacy

Problems with Surrogacy in India:

• In past there has been death cases associated with surrogacy
• There have been several litigations involving surrogacy such as the Baby Manji Yamada case, Baby Balaz case which has led to court interventions and directives. In Baby Manji Yamada case, a Japanese couple who availed of surrogacy in India, divorced while the surrogate mother was pregnant. They then refused to take ownership of child. Gujarat HC then stated extreme urgency to deal with such cases
• On a number of occasions, Indian adoption laws or some other country’s citizenship laws create hurdles. For example, Germany recognizes citizenship by mother which creates issues in determining nationality of surrogate child
• Problem also arises if twins/triplets are born in place of a single child over the issue of custody of child
• A comprehensive law is required to deal with following issues
  • Rights of surrogate mother which includes fair compensation, adequate maternal care, right to abort and provision of maternity relief
  • Law has to prescribe condition like surrogacy by consent. The surrogate mother should be aware of impact of hormones etc on her health
  • The number of times surrogacy is permissible, consent of husband if married are also important issues to be dealt with
  • Life Insurance coverage
  • Clarity over rights of commissioning parents, rights of child born
  • The angle of homosexuality

View of LCI

228^th LCI report recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by an apt legislation 

Provisions of the Surrogacy (Regulation) Bill, 2016 approved by Union Cabinet:

• The Bill will regulate surrogacy in India establishing a National Surrogacy Board at the Central level and State Surrogacy Board and appropriate authorities in the state and Union Territories. The legislation will ensure effective regulation if surrogacy, prohibit commercial surrogacy and allow for altruistic surrogacy to the needy infertile couples
• The Bill bars foreigners, homosexual couples, people in live in relationships and single individuals from becoming surrogate parents. Only childless, straight Indian couples married for a period of 5 years, having proven fertility problems are eligible for surrogacy. NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy
• Eligible couples will have to turn to “close relatives”, not necessarily related by blood for altruistic surrogacy – no exchange of money between the commissioning couple and the surrogate mother. The Bill, which borrows heavily from UK’s altruistic surrogacy Bill, has changed the British provision of allowing only blood relatives to “close relatives”, a term that will be further elaborated in the rules
• The rights of surrogate mother and children born out of surrogacy will be protected
• Bill will apply to whole of India exceptJammu and Kashmir
• Women acting as surrogates can do so only once
• All Assisted Reproductive Technology clinics will have to be registered
• 10 months during whichpregnancies underway now can be seen through and babies delivered 

Advantages of the Bill

The Bill comes at a time when there is a huge need for legislation covering this subject. The Bill focuses on preventing commercialization of surrogacy, prohibit potential exploitation of surrogate mothers and children born through surrogacy. In order to take care of those mothers or couples who have opted for surrogacy as on date, the Bill prescribes a 10 month period to ensure that inconvenience is not caused to the couples and surrogate mother.

Criticism

• The Bill raises questions over the reproductive rights of a woman. The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, warranting interference of a fundamental right. It is for the person and not the state to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the state, constitutionally, cannot interfere. 
• Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14), or of being a reasonable classification, satisfying the objective sought to be achieved.
• The bill deprives single parents, homosexuals of availing the bliss of parenthood through surrogacy
• Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens
• The Indian Council for Medical Research (ICMR), working under the ministry of health and family welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005, after extensive public debate all over the country with all stakeholders. In that it had been stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. Likewise, there was no legal bar on an unmarried woman going in for Artificial Insemination with donor semen (AID) and a child born to a single woman through AID would be deemed legitimate. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date. Successive draft ART (Regulation) Bills in 2008, 2010 and 2013, had reportedly proposed that ART in India would be available to all, including single persons and foreign couples.
• Economically, the bill is bound to have affect on the thriving medical tourism in the country and people associated with it. There are certain countries, particularly European, surrogacy is banned for commercial reasons. The Indian government took a very sensible decision then and decided not issue visas to people coming from such countries. But, there were others who came from countries like the US where surrogacy was available, but exorbitantly expensive. India has also been a safe hub as compared to countries like Indonesia, where fertility procedures are completely unregulated. Indian doctors are competent and clinics are clean and more importantly there was a contract to be signed, which eliminated exploitation and blackmail possibilities on both sides. A blanket ban on such medical tourists makes no sense at all especially when we issue visas to them for other forms of medical tourism.
• Many countries including the UK that have experimented with altruistic surrogacy have realized that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.
• The Bill leaves several questions unanswered such as ensuring protection of health of surrogate mother, maternity relief available to her etc

There is definitely a need for regulation. But the large-scale banning proposed in this bill is akin to trying to cap a volcano. There is no stopping technological advancement and no government can wish away the fact that it has been possible for decades now to create babies outside the womb and to successfully implant them in the womb of a woman who has no genetic link to the embryo. While there is a need for regulation, we can not wish away the advances in medical science and the subsequent impact on surrogacy. We need to have a legislation which, while dealing with the problems associated with surrogacy does not interfere with the reproductive rights of a woman and freedom of choice available to an individual