Hyderabad: The Rajya Sabha today sent the Surrogacy (Regulation) Bill, 2019, which aims to ban commercial surrogacy in India, to a select committee for review. Here we take a look at the need for regulation, highlights of the bill and some glaring loopholes.
Need for regulation
Due to relatively low procedure cost, surrogacy in India was gaining popularity not just among Indians but also foreigners. There was a rise in unethical practices, exploitation of surrogate mothers and even abandonment of children born out of surrogacy.
BILL HIGHLIGHTS
Prohibits commercial surrogacy but allows altruistic surrogacy which involves no monetary compensation to the surrogate other than the medical expenses and insurance cover.
According to the bill, close relatives, such as sisters or cousins can become the surrogate. The Bill also provides for the constitution of surrogacy boards at national and state levels, as well as that the intending couples should not abandon such a child under any condition.
Only Indian couples who have been legally married for at least five years would be allowed to opt for surrogacy, as per the Statement of Objects and Reasons of the bill.
The bill seeks to "allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years and 26-55 years for female and male, respectively".
A woman should be allowed to act as a surrogate mother only once and should be a close relative of the intending couple and "should be an ever-married woman having a child of her own and between the age of 25-35 years". Surrogacy clinics must also be registered by the appropriate authority.
LOOPHOLES
Need to clearly pronounce who is eligible to be a Surrogate mother. However, the proposed bill goes against the right to reproductive choice which falls under "personal liberty" guaranteed by Article 21 of the Indian constitution
The bill also restricts surrogacy to married heterosexual couples and discriminates against members of the LGBT community, older couples and unmarried people. Bill's definition of infertility remains narrow and does not take into account the medical conditions that may allow a woman to conceive but prevent her from carrying a baby.
A five Year period not feasible in the wake of increasing number of late marriages. Upto 10 years imprisonment and 10 lakh fine for violations is too harsh.
The Union Health Minister Harsh Vardhan had moved the Bill in the House, saying the Bill aims to ban commercial surrogacy and allow altruistic surrogacy for Indian citizens.
"Since absence of a regulation in the country, India has become surrogacy hub where around 3,000 clinics are running illegally and 2,000 foreign babies took birth through surrogacy illegally and unethically," said Vardhan.
He said in most countries, commercial surrogacy is not prohibited, but many countries have criminalised it. The European Union has even condemned the practices of surrogacy. On altruistic surrogacy, he said it should not mean monetary business in India.
The Minister said the government presented the Surrogacy (Regulation) Bill, 2016 and received several recommendations from the Standing Committee on Health and Family Welfare. Later, the Bill lapsed when the Lok Sabha was dissolved.
The government then replaced the 2016 Bill with The Surrogacy (Regulation) Bill 2019 and introduced it in the Lok Sabha on July 15, 2019. In the Rajya Sabha, the Bill has been proposed after taking note of 13 recommendations of the committee.
The Bill seeks to constitute a National Surrogacy Board, state surrogacy boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy.
It permits surrogacy in five scenarios: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (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.
The 228th report of the Law Commission had recommended that the government should enact legislation to ensure that there is only restrictive surrogacy in the country and commercial surrogacy is banned
The Ministry of Home Affairs had attempted to control the misuse of surrogacy services by foreign nationals through their Guidelines introduced in July, 2012. In 2015, India had already barred foreign nationals from using the country’s surrogacy services.
