Surrogacy ( Reg ) Bill, 2019

Commercial surrogacy was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation.

Need for the bill:

• Unethical practices
• Exploitation of surrogate mothers
• Abandonment of children born out of surrogacy
• Rackets involving intermediaries importing human embryos and gametes.

Key features of the bill:

NOTE: Surrogate mother cannot provide her own gametes for surrogacy

• Appropriate authority: 
  • The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
  • FUNCTIONS
    • Granting, suspending or cancelling registration of surrogacy clinics
    • Enforcing standards for surrogacy clinics
    • Investigating and taking action against breach of the provisions of the Bill
    • Recommending modifications to the rules and regulations.
• National and State Surrogacy Boards to be constituted.
  • Functions of the NSB
    • advising the central government on policy matters relating to surrogacy.
    • laying down the code of conduct of surrogacy clinics.
    • supervising the functioning of SSBs.
• Parentage and abortion of surrogate child: 
  • Child born out of a surrogacy procedure = biological child of the intending couple.
  • For abortion of the surrogate child
    • written consent of the surrogate mother
    • authorization of the appropriate authority. (compliant with the Medical Termination of Pregnancy Act, 1971) 
• Offences: 
  • undertaking or advertising commercial surrogacy
  • exploiting the surrogate mother
  • abandoning, exploiting or disowning a surrogate child
  • selling or importing human embryo or gametes for surrogacy
• Penalties:
  • imprisonment up to 10 years and a fine up to 10 lakh rupees. 

Concerns associated with the bill:

• Reproductive rights of a woman.
  • Right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, resulting in interference of a fundamental right.
• Lacks clear definition of the ‘close relative’.
• It sets no rules as to how much compensation a surrogate mother can get and should get.
  • According to the CSR report, surrogate mothers are paid $4000-$5000 for bearing the child. Clinics, however, charge the adoptive parents double the money. The reason driving the mothers to surrogacy is usually poverty and lack of education, which further ensures their inability to challenge the exploitation.
• No mention of Non-Resident Indians working or studying abroad who may want to come back home to have a baby.
• Failing test of equality (article 14).
• Deprives unmarried couples, homosexual couples and single men and women of availing parenthood opportunity through surrogacy. ( Inspite of Decriminalization of Sec 377 )
• Due to the prevalence of clandestine ART clinic – it would force the business underground.
• Bill also prohibits ‘fashion surrogacy’ as only the couple who are infertile can opt for surrogacy.

Way forward:

• Regulation of surrogacy must be preceded by law on Assisted Reproductive Technology (ART).
• Honoring contract, ensuring proper insurance and medical checks is important.
• Model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care should be incorporated in the bill.
• Right to privacy of donor as well as surrogate mother should be protected.
• Surrogacy should be made inclusive for all class of people irrespective of their sexuality.

Conclusion:

Rights of surrogate mother and child born must comprehensively be formulated, along with that ART must be regulated thoroughly.