RSTV: IN DEPTH- NEW SURROGACY BILL
Union Cabinet gave its nod to the Surrogacy Regulation Bill 2019, the bill that aims to prohibit commercial surrogacy was introduced in the Lok Sabha on the 15th of July. Commercial surrogacy a practice also known as rent a womb was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation. Commercial surrogacy became a booming business in the country. According to a 2012 study by the Confederation of Indian Industry the size of India surrogate motherhood industry was 2 billion dollars a year. A study backed by the United Nations also conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country but the unregulated business led to concerns over the rampant exploitation of surrogate mothers as well as their children prompting the need for a legislation to regulate surrogacy in the country.
The Surrogacy (Regulation) Bill, 2019:
The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy. Altruistic surrogacy involves contracting a ‘close relative’ as a surrogate by a heterosexual married couple and no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
Purposes for which surrogacy is permitted: Surrogacy is permitted when it is:
(i) for intending couples who suffer from proven infertility;
(iii) not for commercial purposes;
(iv) not for producing children for sale, prostitution or other forms of exploitation; and
(v) for any condition or disease specified through regulations.
Eligibility criteria for intending couple: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
A certificate of essentiality will be issued upon fulfilment of the following conditions: (i) a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and (iv) other conditions that may be specified by regulations.
Eligibility criteria for surrogate mother: To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
- a close relative of the intending couple;
- a married woman having a child of her own;
- 25 to 35 years old;
- a surrogate only once in her lifetime;
- possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.
Appropriate authority: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include;
- granting, suspending or cancelling registration of surrogacy clinics;
- enforcing standards for surrogacy clinics;
- investigating and taking action against breach of the provisions of the Bill;
- recommending modifications to the rules and regulations.
Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority. Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
National and State Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB include,
- advising the central government on policy matters relating to surrogacy;
- laying down the code of conduct of surrogacy clinics; and
- supervising the functioning of SSBs.
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. This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971. Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
Offences and penalties: The offences under the Bill include:
- undertaking or advertising commercial surrogacy;
- exploiting the surrogate mother;
- abandoning, exploiting or disowning a surrogate child;
- selling or importing human embryo or gametes for surrogacy.
The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
View of LCI
228th LCI report recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by an apt legislation
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.
- 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.
Surrogacy Laws Worldwide:
Most countries that allow surrogacy have framed laws to regulate it, thereby also protecting the rights of the surrogate while countries like Britain, America, Australia, Netherlands and Denmark are among those where altruistic surrogacy is legal. Countries such as France, Germany,Italy, Spain,Portugal and Bulgaria prohibit all forms of surrogacy.
- Commercial surrogacy is not legal in the United Kingdom.
- The surrogate is the child’s legal parent at birth.
- Legal parenthood can be transferred by parental order or adoption only once the child is born.
United States of America:
- In the United States of America surrogacy laws vary from state to state.
- Surrogacy friendly states allow both commercial and altruistic surrogacy.
- Arkansas, California, New Hampshire are some such surrogacy friendly states.
- New York does not allow commercial surrogacy.
- Michigan forbids absolutely all surrogacy agreements.
- Canada’s assisted Human Reproduction Act permits only altruistic surrogacy.
- Surrogate mothers may be reimbursed only for approved expenses
- however all surrogacy arrangements are illegal in Quebec in Canada
Armenia, Georgia, Kazakhstan, Russia and Ukraine allow both altruistic and commercial surrogacy.
Kenya, Malaysia and Nigeria don’t prohibit surrogacy but have no formal law to regulate the practice.
Crech Republic, Colombia, Chile and Hungary are among countries with unregulated surrogacy.
Surrogacy is prohibited in Cambodia, Denmark, France, Germany, Italy and Spain and some other countries.
However a lack of internationally recognised laws creates difficulties for aspiring parents. In cases where intended parents go to surrogacy friendly countries, it can take a long time to bring a surrogate baby back to their home country. This is due to different surrogacy laws in the home country and the country where the baby is born. Many experts argue that an international agreement similar to the Hague adoption convention could provide consistency across countries thereby making the process more streamlined.
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