Guest Post- The Scanning of Surrogacy Regulation Bill, 2019


Picture Credits: simplesurrogacy.com

Introduction

The creation of progeny is an important aspect of human life. The right to have a family and maintaining familial relationships is recognised as a human right, under numerous international conventions including the UDHR.[1] However according to the Indian Society for Assisted Reproduction, nearly 27.5 million couples actively trying to conceive suffer from the problem of infertility, which renders them incapable of producing children biologically.[2] In Indian society, utmost importance is given to the conception of children, who can carry the names of their ancestors forward. Apart from the stigma associated by our society to infertile couples, the impact on the mental well-being of an individual is also immense.

In recent times, with the development of science and technology, it has now become possible to conceive a child with the help of assisted reproductive techniques like surrogacy and in-vitro fertilisation.

What is Surrogacy?

Surrogacy is a method of assisted reproduction, wherein a third individual agrees to carry the child of another individual/couple. Following the implantation of the egg and the sperm inside her womb, the surrogate mother undergoes the pregnancy and when the child is born it is legally deemed to be, of the intending parents’.

Based on how this technique is implemented, there are two types of surrogacy that one can opt for:

•        Traditional Surrogacy: In this form of surrogacy, the surrogate mother is impregnated by the father and carries her own biological child. Here half of the genetic material is provided by the surrogate mother herself. Traditional surrogacy was popular when there did not exist any other means of obtaining genetic material from the intending mother.[3]

•        Gestational Surrogacy: This is a relatively modern process of performing surrogacy as a method of assisted reproduction. Here, the embryo is created using the intending mother and father’s genetic materials and then implanted into the womb of the surrogate mother. The child produced as a result thereof is not biologically related to the birth mother.[4]

Apart from that, based on financial compensation, there are two other types of Surrogacy;

•        Compensated/Commercial Surrogacy: In this method of surrogacy, the commissioning parents compensate the surrogate mother in exchange for services rendered by her. Here, the birth mother is reimbursed beyond medical expenses.[5]

•        Altruistic Surrogacy: In case the surrogate mother carries the child without any expectation of financial compensation, the form of surrogacy is known as altruistic surrogacy. Here, the birth mother is only entitled to medical compensation.[6]

Surrogacy in India

India, since ancient times, has used Surrogacy as a method of assisted reproduction. Traditionally, there are numerous instances of infertility and subsequent reproduction through surrogacy in Indian Epics.

India has a vast market for commercial surrogacy. In 2012, even by conservative estimates, it was shown that India has a surrogacy market worth $2 billion.[7] There are many problems associated with commercial surrogacy in India. Due to the vast and unregulated market for commercial surrogacy, Surrogate mothers are not given proper medical care, and the children born are sometimes exploited for immoral purposes. 

There have been many endeavours to regulate Surrogacy in India. The Government has come up with multiple Assisted Reproductive Technologies Bill(s) and Surrogacy Regulation Bill(s), but all of them remain un-enacted.

According to guidelines issued by ICMR in 2002, Commercial Surrogacy was allowed in India. However subsequently in 2015, commercial surrogacy commissioned by foreign nationals was banned.[8]

1.  Surrogacy (Regulation) Bill, 2016: The first attempt to bring about specific legislation to regulate Surrogacy and its application was introduced in 2016. This Bill was also passed by the Lok Sabha.

Some of the provisions mentioned in the Bill included the banning of commercial surrogacy and limiting its use to infertile heterosexual couples. This was heavily criticised for being violative of some of the provisions enshrined in the Indian Constitution.[9]

2.     Surrogacy (Regulation) Bill, 2019: The Surrogacy Regulation Bill of 2019 was introduced by the Ministry of Health and Family Welfare on the 15 July, 2019. Some of the Salient Features of this Bill are as follows:

  • This Bill permits only altruistic surrogacy, limiting all other forms of surrogacy in India. It allows only the payment of medical expenses incurred by the Surrogate mother.[10]
  • The intending couple, under this Bill, has to be medically unable to conceive children.[11] This certificate of infertility has to be issued by the District Medical Board, established as per this Bill.
  • Under the provisions of this Bill, the intending couple has to be of Indian nationality, married for 5 years, and within the prescribed age.[12]
  • The intending couple should not have any other healthy and living child biologically or through adoption or surrogacy.[13]
  • The surrogate mother, as per the provisions of this Bill has to be a married woman with a child of her own and a close relative of the intending couple. She should be of the prescribed age and have a certificate outlining her physical and psychological fitness. She is also prohibited to be a surrogate mother more than once.[14]
  • The child born out of Surrogacy should not be subjected to any form of exploitation.[15]
  • The Bill also seeks to establish a National Surrogacy Board, along with State Surrogacy Board in all states as well as District Surrogacy Boards.[16]
  • For the process of surrogacy, the intending couple needs to gather a certificate of essentiality and a certificate of eligibility.[17]
  • This Bill also prescribes offences along with punishments for the same. Some of the offences under this Act include Involvement in commercial surrogacy through advertising or practicing, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy. All of these offences are cognizable, non-bailable, and non-compoundable.[18]

Changes introduced on the basis of the Recommendations of the Select Committee

After the introduction of the Surrogacy Bill of 2019, there were various concerning issues that cropped up, with respect to the rights of the parties involved and the ambiguity of certain definitions. To address these concerns, a Rajya Sabha Select Committee was set up to propose recommendations[19] with regards to the Bill. Some of the major changes made on the basis of these recommendations presented in front of the Rajya Sabha on 5 February 2020 included:

  • The scrapping of the minimum requirement of waiting time of 5 years after marriage, to prove infertility.
  • The Committee also suggested extending the facility of surrogacy to Indian origin married couples, and single women, either divorced or widowed.
  • The Committee also discarded the vaguely defined provision of ‘close relative’ who was eligible to become the surrogate mother. Instead, it suggested that any willing woman could act as a surrogate mother.
  • The benefits allowed to surrogate mothers were also increased, as a result of these recommendations.

Reasons for Introduction of the Bill:

Commercial Surrogacy in India had been prevalent for quite a long and this had given rise to unethical practices majorly abandoning by intending parents and selling into prostitution. In the case of Baby Manji Yamada v. Union of India,[20] the compilations relating to foreign couples and individuals commissioning a child were highlighted. Baby Manji was born out of commercial surrogacy in Gujarat, and the father of the child was a Japanese citizen who could not take the child to Japan because of a lack of existing framework there.

Apart from that Surrogacy clinics, serving as hubs of commercial surrogacy were known to mistreat women serving as surrogate mothers. There had been a report of a woman dying because of maltreatment. Thus the need for such a bill came up.

Finally, this Bill was introduced to make the laws surrounding surrogacy more stringent, so that it is not misused.

Criticisms of the Surrogacy (Regulation) Bill:

Despite the reasons for its introduction, the Surrogacy Bill of 2019 has been criticised on various bases. The bill is extremely restrictive in nature, such as, excluding everyone except married heterosexual couples and widowed/divorced women within 35 to 45 years of age to undergo surrogacy. It is also in contravention with some of the basic Fundamental Rights Provided by the Constitution, which are;

•       Article 14: Article 14 of the Indian Constitution provides for equality before the law or equal protection in the eyes of the law.[21] The Doctrine of Reasonable Classification comes into play, while the application of Article 14. It allows classification of persons as long as there exists a rational nexus for the said classification. The Surrogacy Regulation Bill discriminates between heterosexual and homosexual couples, as well as divorced/widowed women and otherwise single individuals. These provisions do not pass the test of reasonable classification, as they arbitrarily discriminate against a class of individuals.

•        Article 19: Article 19(1)(g) protects the right of an individual to practice any profession, trade, and occupation.[22] Banning commercial surrogacy will deprive many women of their only source of livelihood. Moreover, economic theories have conclusively determined that a ban does not necessarily stop the practice, rather it encourages a shift to the black market. A ban on commercial surrogacy would therefore much likely worsen the condition of women involved in the business, and stop them from access to any form of legal help.[23]

•     Article 21: The scope of Article 21 is broad enough to include the reproductive autonomy of individuals.[24] The Supreme Court has held that an individual has the right to decide over matters such as family, marriage, procreation, motherhood, childbearing among other things.[25]Thus the provisions outlined in the Bill are violative of Article 21 of the Indian Constitution.

Conclusion

It is agreed upon that regulation of the practice surrogacy is essential, to avoid unethical application. However, these regulations should be imposed keeping in mind the welfare of the child born and the surrogate mother. A complete ban on commercial surrogacy only points towards apathy for surrogate mothers. The focus of the legislation should therefore be towards regulation and not a complete blanket ban.

Apart from that, it should be once again reiterated that this bill is unnecessarily restrictive in nature. It does not allow access to many categories of people including single men, non-divorced and non-widowed single women, homosexual couples, couples in live-in relationships, amongst others. Surrogacy as a method of assisted reproductive technique should be available to any consenting adult, keeping within purview the safety and health of the child and the surrogate mother.

By

Prerna Murarka

IV - B.A. LL.B.


[1] Universal Declaration of Human Rights, Art. 16

[2] Neeta Lal, “India’s Hidden Infertility Struggles”, The Diplomat, May 30, 2018.

[3] Baby Manji Yamada v. Union of India, (2008) 13 SCC 518

[4] Ibid.

[5] Supra note 3

[6] Supra note 3

[9] The Surrogacy Regulation Bill, 2016 

[10] The Surrogacy Regulation Bill. (Bill No. 156-C of 2019), s. 4(ii)(b)

[11] The Surrogacy Regulation Bill, (Bill No. 156-C of 2019), s. 4(iii)(a)(I)

[12] The Surrogacy Regulation Bill, (Bill No. 156-C of 2019), s. 4(iii)(c)

[13] The Surrogacy Regulation Bill, (Bill No. 156-C of 2019), s. 4(iii)(c)(IV)

[14] The Surrogacy Regulation Bill, (Bill No. 156-C of 2019), s. 4(b)(i)

[15] The Surrogacy Regulation Bill, (Bill No. 156-C of 2019), s. 35(d)

[16] The Surrogacy Regulation Bill, 2019, (Bill No. 156-C of 2019), chap. V

[17] The Surrogacy Regulation Bill, 2019, (Bill No. 156-C of 2019), s. 4(iii)(a)

[18] The Surrogacy Regulation Bill, 2019, (Bill No. 156-C of 2019), chap. VII

[19] Report of the Select Committee on Surrogacy Regulation Bill, available at : https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf

[20] Supra note 3

[21] The Constitution of India, Art. 14

[22] The Constitution of India, Art. 19(1)(g)

[23] Prabhajan Kumar Singh, Critical Evaluation of Draft Surrogacy (Regulation) Bill, 2 JLJ (2017).

[24] The Constitution of India, Art 21

[25] R. Rajagopal vs State Of Tamil Nadu, 1995 AIR 264

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