New Delhi, December 20: Amidst frequent disruption and chaos, the Lok Sabha on Wednesday passed the Surrogacy (Regulation) Bill which was introduced in 2016.
The Bill attempts to effectively outlaw commercial surrogacy but allows surrogacy for non-commercial or altruistic needs. It also ventures to end the exploitation of surrogate mothers and ensures the rights of children born out of surrogacy. The bill attempts to regulate surrogacy by constituting surrogacy boards at national and state level.
India is called as a surrogacy hub for couples from across the world. According to a report by the Scroll.in, Assisted Reproductive Technology (ART) industry has grown from Rs. 3,000 crores in 2014 to Rs. 20,000 in 2018.
Clause 2(F) of the bill outlines “commercial surrogacy” as commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.
Altruistic surrogacy to infertile Indian married couple
The bill outlines “couple” as legally married Indian man and woman above the age of 21 years and 18 years, married for a period of at least five years. This means that couples from outside India, same-sex partners or couples living together can not opt for surrogacy. Also, only the couple who is certified clinically as infertile can legally avail the service. They should not have any child of their own but if the surviving child is medically certified to be mentally or physically challenged, or as having life-threatening diseases, the couple can avail surrogacy services.
The bill permits only “altruistic surrogacy” which is defined in the clause 2(b) as the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative.
However, the surrogate mother can not be a close relative of the intending couple. Moreover, she would be allowed to act as a surrogate mother only once in her lifetime.
Prohibition to abandon child born out of surrogacy
The bill prohibits intending couple from abandoning the child born out of surrogacy procedure. The child will be deemed as a legal offspring of the intending couple.
To protect the right of the surrogate mother, the bill states that the mother cannot be forced to abort the child by any person or agency.
Registration of surrogacy clinics
The surrogacy clinics shall be registered only after the appropriate authority is satisfied that such clinics are in a position to provide facilities and can maintain equipment and standards including specialized manpower, physical infrastructure, and diagnostic facilities in the manner provided in the bill.
The bill seeks to constitute surrogacy board at both national level and state level. The work of the board will be to advise the government on surrogacy policy, review and monitor the implementation of the law.
In order to regulate surrogacy in India, the Indian Council of Medical Research (ICMR) issued a few guidelines in 2005. It stated that the surrogate mother should be entitled to a compensation decided by the commissioning couple and the mother carrying the child. The Supreme Court of India in Baby Manji Yamada Vs. Union of India Highlighted the lack of regulation for surrogacy in India. The issue caught the national attention in 2009 when the Law Commission of India in its 229th report recommended a prohibition on commercial surrogacy. A government notification in 2015 prohibited surrogacy for non-Indians. Finally, in 2016, the Surrogacy (Regulation) Bill was introduced in Lok Sabha.
Due to the rising incidents of unethical practices of surrogacy, exploitation of surrogate mothers, abandonment of child born out of surrogacy and import of human embryos and gametes, it has become necessary to enact legislation to put a blanket ban on commercial surrogacy and regulate “altruistic surrogacy”.