Commercial Surrogacy Banned in India - SURROGACY Law Passed in India

The passing of the THE SURROGACY (REGULATION) BILL, 2018 in India on 19^th of Dec 2019in the Lok Sabha has been a major step to stop commercial surrogacy and prevent the exploitation of poor women by the affordable population, and frequent reports of exploitation of these women by fertility clinics as well as rich foreigners. The bill will constitute ‘National Surrogacy Board’, ‘State Surrogacy Boards’ and appointment of ‘Appropriate Authorities’ for regulation of the practice and process of surrogacy. The bill has been enacted by Parliament in the 69^th Year of the Republic of India is a major step in the right direction. This bill extends to the whole of India except the State of Jammu and Kashmir. Health Minister JP Nadda said that the bill addresses the concerns expressed by various sections sections of the society, political parties, as well as the Law Commission and the Supreme Court.

Previous minister of congress Kapil Sibal has said, ‘The government must adopt a rights-based approach that speaks to the needs and aspirations of surrogate mothers, children born out of surrogacy, and all individuals who want access to altruistic surrogacy services”.

The Bill defines Infertility as the inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception. This definition does not cover all cases in which a couple is unable to bear a child.

Main Aims of Surrogacy Bill

• Regulate surrogacy in India which currently remains unregulated
• To make available altruistic surrogacy to infertile Indian couples
• Banning of commercial surrogacy for monetary benefit as well as sale of human embryos and gametes
• Prevent exploitation of poor women by fertility clinics and rich clients
• Protecting the rights of babies born through surrogacy

Key Features of Surrogacy Regulation Bill

• Commercial surrogacy is illegal; henceforth only altruistic surrogacy allowed under law
• Permits infertile married couples (23- 50 years and 26-55 years for female and male respectively) who are unable to conceive a baby even after five years of unprotected sex
• The couple should be legally married for a period of at least 5 years and should be Indian citizens
• Surrogacy will not be allowed if the couple has a surviving child either biological or adopted, except if the child is physically or mentally challenged or has an incurable condition
• The couple should undertake that they will on no condition abandon the child born through surrogacy and provide the same rights as a biological child
• The surrogate can only be a close genetic relative who has already given birth to a health baby and she can act as surrogate mother only once.
• A reasonable amount as insurance will be ensured in favor of the surrogate mother
• Live-in-couples, single persons, foreign nationals and homosexuals are NOT permitted to opt for surrogacy under the law
• The system will be overseen by National and State Surrogacy Boards with appointment of authorities who will form and implement policies to regulate surrogacy in fertility centers and clinics
• The Board will comprise of the Minister in-charge of the Ministry of Health and Family Welfare, as the Chairperson, and the Vice Chairperson will be Secretary to the Government of India in- charge of the Department dealing with the surrogacy matter and three women Members of Parliament, two of whom shall be chosen by the House of the People and one by the Council of State
• The appropriate state authority shall include an officer of or above the rank of the Joint Director of Health and Family Welfare Department as Chairperson, and three members including an eminent woman representing women’s organization, an officer of Law Department of the State or the Union territory concerned not below the rank of a Deputy Secretary, and an eminent registered medical practitioner, as a member
• During the transition period following the passing of the bill, a 10 month gestation period from the date of coming into force of this act will be ensured to protect the safety and wellbeing of already existing surrogate mothers
• The surrogacy clinics shall be registered under this Act only after the Appropriate Authority is satisfied that such clinics have adequate prescribed standards including specialized manpower, physical infrastructure and equipment and diagnostic facilities
• The surrogacy clinics have to maintain case records for at least 25 years
• The surrogate mother and the intended parents have to obtain certificates of eligibility from the appropriate authority
• Couples who already have a child are not permitted to go for surrogacy; they can opt for adoption if they wish to
• If found to undertake surrogacy by offering payment or exploiting the surrogate mother, it can be punishable with a Rs.10 lakh fine and imprisonment for 10 years

Potential Issues with the Surrogacy Regulation Bill

• The term “close relative” is not clearly defined in the bill. This requires to be defined when the rules are passed.
• As per the bill, the surrogate mother can donate her egg; in such instances if the surrogate mother happens to be husband’s sister, the risk of birth defects in the baby is increased
• Definition of infertility according to the bill restricted to “failure to conceive”; if the woman has a medical condition where she can conceive but cannot carry the pregnancy to term or suffers repeated miscarriages, the couple cannot undertake surrogacy according to the new Bill
• The Bill does not mention a definite time limit by which the authority will provide eligibility certificates; the Bill does not mention if there would be a procedure to review or appeal should the initial surrogacy application be rejected.
• In case of medical termination of pregnancy (MTP), only the consent of the surrogate is required and the intended parents have no role in the decision. Additionally the bill does not specify the time frame within which authorization for MTP must be given
• The bill provides the regulatory boards with undue powers to impose further conditions on the intended couple, and these powers may be misused
• If there is an element of doubt that the surrogate mother was forced to do so by her husband, the intended couple or “relative”, they can be punished by law.
• Additionally, in the above instance, the burden of proving their innocence falls on the intended couple and surrogate’s relatives and not on the prosecution to prove their wrongdoing or guilt as is the case now.
• Storage of eggs for surrogacy is not allowed as per the bill. This can affect the intended mother’s health as she now has to undergo repeated hormonal treatments (with side effects) to extract eggs for implantation if the first time fails to yield a positive result. This is different from existing ICMR guidelines (2005) which permit storage of embryos for five years.

What is now perhaps required is to put the right rules together to regulate the bill and for this a public consultation will need to be invited.

References:

1. The Surrogacy (Regulation) Bill, 2016 - (https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2016)
2. About Surrogacy (Regulation) Bill, 2016 - (https://dhr.gov.in/sites/default/files/surrogacyregbill_0.pdf)

Source-Medindia