Chapter I of the Surrogacy Bill defines Surrogacy as the practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after birth to the intending couple. In India, the intending couple is then termed as the legal guardian of the child born out of this arrangement. On July 15, 2019, the Surrogacy (Regulation) Bill was introduced in the Lok Sabha by Dr. Harsh Vardhan, Minister of Health and Family Welfare, which seeks to ban hiring of womb by infertile couple (Commercial Surrogacy), and rather facilitate “Altruistic Surrogacy”.
After Surrogacy for International Citizens was banned in 2015, a similar Bill was introduced in 2016 to ban commercial surrogacy in India, which did not get passed. The low costs for medical treatments (in India the cost for surrogacy is 1/3rd of that in USA) and the vulnerabilty of the economically not so well doing women, willing to give their womb for rent, spiked an increase in the cases of surrogacy, making it easily excessible for anyone to hire a womb, and get a child through surrogacy. In 2005, the Surrogacy Bill was passed after landmark judgment Baby Manji Yamada V Union of India & Anr., which emphasised on the need for legalisation of surrogacy for parents who have no other option to resort to. The Indian Council of Medical Research (ICMR) even proposed some guidelines in 2005, which unfortunately never got the nod in the Parliament. Owing to the golden opportunity in hand, the medical industry took advantage of the circumstances and the number of clinics offering the medical assistance for the practice, shot up from 59 in 2001 to 700+ in todays date. In a country like India, where a woman is respected as a wife based on her ability to bear a child, played a huge role in contributing to the exploitation of the facility provided to the people.
Read – Surrogacy – The Right Thing To Do?
the Surrogacy Bill passed recently, aims at banning of commercial surrogacy, but allows Altruisic Surrogacy. Altruisic Surrogacy, as defined U/S 2(b) state: “Altruisic Surrogacy means 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, are given to the surrogate mother or her dependents or her representative”. It also mentions the purpose for which surrogacy can be permitted, like: for intending couples who suffer from proven infertility, not for producing children for sale, prostitution or other forms of exploitation; and for any condition or disease specified through regulations.
The intending couple now ought to have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority, and the Surrogate mother needs to obtain a certificate of eligibility from the appropriate authority too. The surrogate mother needs to be: (i) a close relative of the intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother now cannot provide her own gametes for surrogacy.
The Bill does not stop here, it lays down the objective of regulating separate authority by the Central and State Government, which will perform the functions like: 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, and recommending modifications to the rules and regulations. Moreover, The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
Read – Surrogacy Law And Practice In India
To make this matter even more air tight, several offences have been clearly specified, like: undertaking or advertising commercial surrogacy, exploiting the surrogate mother, abandoning, exploiting or disowning a surrogate child, and selling or importing human embryo or gametes for surrogacy, for which penalties like imprisonment up to 10 years and a fine up to 10 lakh rupees have been instated.
This bill maybe termed as a casual approach to a serious cause, passed under the shadow of the Jammu and Kashmir Reorganisation Bill, or the abolishment of A370 of the Indian Constitution, but it’s a start to avoid inhumane exploitation of resources.
This Article is authored by – Pankhuri Pankaj, Student of B.A. LL.B, Vivekananda Institute Of Professional Studies, Delhi
