1. Surrogacy Bill
The Surrogacy (Regulation) Billrelates to surrogacy, an infertility treatment, where a third person, a woman, is the surrogate mother.
The Bill defines surrogacy as a practice where awoman gives birthto a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
2. Surrogacy Bill, 2020
On February 26, 2020, the Union Cabinet approved the new Surrogacy Regulation Act, 2020, allowing any woman who wishes or has the willingness to become a surrogate mother. The Bill had been put on the back burner due to the COVID-19 pandemic, but thereafter it was expected to be introduced as Bill 2021 in the lower house of the Indian Parliament in its upcoming session. The Bill was a significant improvement to overcome the loopholes of the Surrogacy Regulation Act of 2019 but continues to adopt a needs-based approach rather than a rights-based approach, which is pending to be enacted into law before obtaining presidential assent and serving its purpose.
Some of the main features of the proposed surrogacy legislation are:
- Establishment of regulatory bodies: The Bill proposes to regulate surrogacy by establishing a National Surrogacy Board at the central level, a State Surrogacy Board at the state level and one or more competent authorities or agencies for each Union Territory.
- Specify minimum standards for physical infrastructure, laboratory and diagnostic equipment and professional staff to be employed by surrogacy clinics.
- Ban on commercial surrogacy: The Law Commission of India has recommended a ban on commercial surrogacy by enacting appropriate legislation in its 228th report.
- It only allows altruistic surrogacy to stop the growth of the uterus rental industry and prevent the exploitation of surrogate mothers.
- Banning surrogacy for commercial purposes can also be understood to mean a ban on fashionable surrogacy when it is just for convenience rather than a medical necessity.
Countries like Australia, New Zealand, the United Kingdom, Canada, Netherlands, South Africa, etc. are also following the same.
- Omission of the definition of infertility: The Surrogacy (Regulation) Act 2019 required at least one member of an intended couple to suffer from proven infertility to be eligible for the surrogacy process. However, the 2020 Bill modified possible surrogacy for couples if the prospective couple has a medical indication requiring gestational surrogacy.
- An Indian woman who is widowed or divorced between the ages of 35 and 45 and who intends to use surrogacy, opts for surrogacy.
3. Objectives And Need Of The Bill
Curb unethical practices: Both the Bills seek to curb unethical practices related to issues of sex selection and exploitation of the surrogate.
Regulation: Couples would arrive in India, and buy wombs and take children back. Thus, it has become more than imperative to regulate both assisted reproductive technology (ART) and surrogacy in the country.
To curb the exploitation of women: In 2014, a 26-year-old woman died owing to complications during egg retrieval. Under the ART, ovaries are stimulated for eggs to be extracted. This is a highly technical procedure which needs to be regulated.
Unmarried women sell their wombs to tide over financial crises. This should not happen.
Ex There has been a case in Andhra where a 74-year-old woman gave birth to twins. How will such an old person bring up their children? It is physically unhealthy and ethically wrong.
To curb sex selection: there are unregulated IVF centres all over the country and with unregulated surrogacy taking place sex selection was happening in both ways.
To stop reproductive medical tourism: India has become a centre of the global fertility industry, with reproductive medical tourism seeing a huge rise.
4. Eligibility Criteria for Surrogacy Procedure
The following documents should be issued to the intended couple by the relevant authority:
- Certificate of Essentiality
- Certificate of Eligibility
A Certificate of Essentiality will be given, If the following criteria are met:
1. A District Medical Board certification confirming the intended couples proven infertility for either one or both members;
2. A Magistrates court order granting parental rights and custody of the surrogate kid;
3. Insurance protection for the surrogate mothers postpartum birth problems for sixteen months.
A Certificate of Eligibility will be given, If the following criteria are met:
1. The wifes age must be between 23 and 50, and the husbands age must be between 26 and 55. The couple must be Indian nationals and have been married for at least five years.
2. The couple has no living children (biological, adopted, or surrogate), excluding any children who are physically or intellectually challenged or have a fatal illness; and any other circumstances that may be required by law.
The surrogate mother must meet the following criteria in order to acquire a certificate of eligibility from the relevant agency:
1. A close family member of the prospective couple;
2. A married mother of ones own child;
3. The age range of 25 to 35;
4. She will only ever be a surrogate once; and
5. Possessing a certificate proving ones physical and mental readiness for surrogacy
6. The surrogate mother is also not permitted to provide her own gametes for surrogacy.
5. Issues in Surrogacy (Regulation) Bill, 2020:
a. Surrogacy disrupts the relationshipbetween the mother and child, commodifies the child, meddles with nature, and exploits underprivileged women in developing nations.
b. The rights to parenthood and reproductionare included in the right to life. Consequently, the state shouldnt determine how to parent.
c. In general, pregnant women receive relatively little compensation, with ART clinics taking a substantial portion.
d. In most cases, surrogacy involves gender selection, which is prohibited in India. ART clinics are operating the sex determination and abortion industries illegally under the pretext of surrogacy.
e. Surrogacy poses a major threat to womens healthand numerous health concerns to the unborn child are associated with surrogacy, including genetic problems, low birth weight, membrane damage, etc.
f. Those who identify as LGBTQ+, couples in-live relationships and single parents are however denied this possibility under the proposed legislation.
g. Even in cases of in vitro fertilisation, such as in Catholicism, many religions forbid surrogacy. It holds that having a child is a gift, not a right and that using artificial means to have one is morally unethical.
6. Conclusion
The proposed surrogacy law is a unique combination of social, moral, ethical, legal, and scientific issues and is an effective attempt to harmonise the conflicting interests involved in the surrogacy process in order to ensure the improvement of the childs condition while protecting the interests of the surrogate mother and clients. Strong penalties under the proposed legislation will act as a deterrent to potential violators and ensure that all parties proceed fairly and proportionally. However, it is prudent to pass the Assisted Reproduction (ART) Bill 2020. Before the Surrogacy Regulation, Bill 2020 was passed as it would help create a regulatory mechanism for ART clinics as a whole and regulate processes such as surrogacy and abortion in a better way.
7. Citations
1. Issues in Surrogacy Bill available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/ (Last Visited 10th December)
2. Eligiblity Criteria For Surrogacy Procedure available at : https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019 (Last Visited 10th December)
3. https://indianexpress.com/article/india/surrogacy-regulation-bill-art-bill-passed-by-rajya-sabha-7663054/ (Last Visited 10th december)
