LEGISLATIONS REGULATING SURROGACY IN INDIA: AN ANALYSIS
By: Arunav Bhattacharjya* |
Surrogacy was legalized in India in the year 2002 but it was commercial in nature. As India emerged as a leader in international surrogacy due to the low cost and favourable environment, there was a need for proper legislation to regulate the practice and safeguard the rights of the surrogate mother and the intending couple. It was in this regard that the 228th Report of the Law Commission espoused the need for regulations of Assisted Reproductive Technology (ART) clinics and the rights and obligations of the parties involved. The Report recognized the growth of ART methods in assisting the infertile couple to have a child and the need for comprehensive legislation to deal with such a complex and delicate issue in a society like India.
ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL 2010
The first step towards regulations in the surrogacy industry was the ART Bill that was drafted in the year 2010. As a first step towards the regulation of surrogacy in the country, the Bill gave a new ray of hope to the couples but then again the Bill was riddled with many flaws and questions that needed an answer. Although the Bill tends to regulate an already existing surrogacy industry in the country, it was down falling because it was inadequate in dealing with significant matters in the surrogacy industry which largely remained unaddressed in the Bill. Issues such as citizenship of a child born out of surrogate for a foreign couple, determination of the status of the surrogate child which was not well touched upon in Clause 35, right of the surrogate mother over the unborn child and moreover it failed to shield and preserve the rights and welfare issues of the women who undertake the cumbersome surrogacy process. The flaws and the various loopholes which were left behind in the Bill left much scope for the abuse of the various provisions of it and hence it led to many other criticisms in the various quarters of the society.[i] Some of the crucial issues that arose out of the Bill were that-
a) There were no specifications on the maximum age limit for the couples or individual to become eligible and make use of ART.
b) The Bill failed to mention the specific period for which a newborn baby will be kept with the surrogate mother, and remedies if health issues arise due to the complications to the foetus in the mother’s womb. Thus it did not give effective rights to the surrogate mother over the foetus.
c) The Bill prohibits the use of the egg of the surrogate mothers, and the infertile couple has to look for an egg donor; the surrogate woman has to, therefore, undergo the complicated process of IVF
d) The Bill, unfortunately, failed to secure the right to privacy of the surrogate mother as it was explicitly mentioned that the surrogate mother had to mention her name for any medical treatment that she would undergo and also provide the name of the intending couple on behalf of whom she is acting as a surrogate.[ii]
SURROGACY (REGULATION) BILL, 2016
With the unfortunate failure of the ART Bill 2010 which failed to address the rights of the surrogate mother and protection against exploitation of the surrogate mother, the Surrogacy Regulation Bill was presented in the Parliament in 2016 and was publicized as a landmark step in the optimistic direction with respect to regulation of the practice of surrogacy in India. The Bill sheds sufficient importance on prevention of the commercialization of surrogacy, and against the exploitation meted out to the surrogate mothers and the children born out of surrogacy. The Health Ministry then issued a press statement citing that India has emerged as a surrogacy hub for couples from different nations where the laws are not particularly favorable.[iii] This has resulted in an increase in unethical practices, putting both surrogate mothers and their children at risk. It is important to note that the government has responded to this problem by banning it completely rather than imposing checks and limits. Therefore, the bill effectively bans foreigners to seek an Indian surrogate mother. It also includes non-resident Indians (NRIs).[iv] The law is specifically tailored to suit the needs of the heterosexual married Indian couples with medically proven infertility. This will, by omission, keep out homosexual couples as the law is yet to cover them, as well as live-in partners, and single men and women who might want a surrogate child. It is explicitly stated in the bill that a couple should have been married for at least five years before approaching a surrogate mother. Further, the woman has to be between 23-50 years of age and the man should be 26-55 years old.
It has provisions in the Bill that an intending couple cannot pay a surrogate mother If there is a heterosexual married couple who have proven infertility, and they find someone who agrees to be a surrogate mother, the person who has agreed to be the surrogate can’t be paid monetarily. The couple will have to fund any and all of her medical bills, but cannot remunerate her for agreeing to bear a child for the benefit of the intending couple. The law also requires that the chosen surrogate mother has to be someone who is a “close relative” of the intending couple. The sole objective of this law is to ensure that the woman who has agreed to be a surrogate mother has not decided to do so for any monetary remuneration or self-serving profit but out of genuine concern for the childless couple. This ensures that surrogacy is not looked as a means of earning a livelihood. However, the problem that lies here is the entire definition of ‘close relative’ Also, if a couple already has a child, they can't try for another as surrogacy method is an option that is exclusive only for those for childless couples. Thus, the law is specifically meant to serve the interests of childless couples. Therefore, the law makes surrogacy as a one-time option. The Bill has also defined the surrogacy regulatory bodies who will be having competent authority to adjudicate matters related to it.
AN EVALUATION OF THE BILL AND RE-EXAMINATION OF THE INDIAN ETHOS
Although the Bill gives a new ray of hope, it also has various complexities that need to be properly addressed in the public forum.[v]
A) Firstly, the need of just a relative being a surrogate mother which puts a limitation of the likelihood of surrogacy to an expansive degree because, in most circumstances, surrogacy turns out to be the last alternative that a couple chooses. Despite the fact that adoption is constantly another decision, the adoption procedure is long and monotonous.[vi]
B) Regardless of the possibility that the state needed to check surrogacy with a specific end goal to encourage adoption, there should be a proper streamlining of adoption strategies.[vii]
C) Also, it must be noted here some women consider being a surrogate as the main source of occupation similar to that of those involved in prostitution when they have no other source of income for livelihood. This encourages the individuals who live in the surrogacy industry a free hand to exploit the surrogate mothers financially, thus constraining their income to sustain their livelihood.[viii]
D) The long-drawn and safe IVF technology can also be considered as an option for the intending couple to achieve a successful pregnancy with a healthy baby
E) Approaches should be organized and laws should be actualized in a manner that the issue is settled without blue-pencilling the whole industry itself. A standout amongst the most petulant purposes of the bill is its barefaced ban on surrogacy rights of homosexual couples.[ix] Sushma Swaraj plainly expressed that surrogacy for homosexuals is against "Indian ethos", in spite of the fact that homosexuality has been continually specified in different Indian writings.[x]
This stands out as a clear instance of forswearing of equity to the LGBTQI+ community.[xi] Aside from this one flaw, in any case, the bill seems to accomplish more damage than great. A close relative might be forced by the members of the family to become a surrogate mother for an infertile couple in the family. In metropolitan cities where the nuclear family is a norm, it would be very difficult for an infertile couple to find a relative who would accept to be commissioned as a surrogate mother. This would reduce choices before a couple for finding commissioning surrogate mothers. The bill displays an absence of comprehension of the agency which should be given to a woman; that a woman ought to have the capacity to settle on choices when the question is as to her body.
LATEST DEVELOPMENT ON THE 2020 AMENDMENT
The current bill which was yet to passed by the Rajya Sabha (as of 21st November 2019) was insufficient to effectively deal with the matters related to surrogacy. The bill was sent for review by the Rajya Sabha to a select committee and was due to be brought up in the Winter session of the Parliament. The 2019 Bill which was passed by the Lok Sabha had several flaws that had to be corrected. With issues like that of “close relative” undefined, it was more or less an exact replica of the one that was introduced in 2016. Keeping in mind the existing undefined terms in the Bill, the issue of the authority of the National Surrogacy Board, the prohibition of commercial surrogacy to ensure the reproductive right of a surrogate woman and the changing global standards on surrogacy, the Select Committee of the Rajya Sabha prepared a detailed report ensuring the changes to be bought in the Bill.
The Rajya Sabha Select Committee presented its report on the Surrogacy (Regulation) Bill 2019 on 5th February 2020. Among the major changes proposed by the 23 member committee was that the surrogate mother need not have to be ‘close relative’ of the intending couple as it restricts potential surrogate mothers. It also suggested the omission of the five-year time limit before seeking surrogacy method and deletion of the definition of “infertility” as “the inability to conceive after five years of unprotected intercourse” on grounds that it was too long a period for a couple to wait for a child. The Committee as a general recommendation stated that the ART Bill, which is awaiting Cabinet approval, should be taken up before the Surrogacy (Regulation) Bill, as the ART Bill principally deals with aspects which are technical, scientific and medical in nature. On 26th February, the Union Cabinet approved the Bill incorporating the changes suggested by the Committee.
The right to reproduce is a fundamental, inalienable and an inborn human right.[xii] Today, surrogacy method has proved an excellent option to triumph over biological infertility of a couple.[xiii] Indian society has a prejudiced opinion that a picture of a family is never complete without children. Acceleration of birth-giving technologies like surrogacy procedure into a fertility industry has given a simmering ray of hope to eradicate this social stigma associated with biological infertility and hence surrogacy has proved to be a boon to the childless couple to pacify their desire of parentage. The primary reasons for India becoming a go-to destination for surrogacy is the low cost offered for surrogacy which is far cheaper than the other countries and the surrogacy is not forbidden by the law in India. As a result of this, India today is seen as the surrogacy capital of the world. With legislations which has been passed by parliament with an intention to regulate an already existing surrogacy industry, the rights of the surrogate mother are yet to be fully addressed and many questions lie unanswered. Due to the various medico-legal, social and ethical issues related to it, surrogacy has become a topic of discussion and deliberation among the public at large. So the need of the hour is that the complexities of the existing provisions, its inadequacies and the ambiguities involved in the implementation should be given clarity as soon as it is possible and for the greater good of women in the society.
* The author is a student at National Law University and Judicial Academy, Assam.
[i] Apoorva Singh Katiyar, Surrogacy: A Hope To Childless Couple Along With A Challenge To Law Vol.1 Issue 6, INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES: ISSN: 2348-8212 [ii] Id. [iii] NH Patel, YD Jadeja, HK Bhadarka, MN Patel, NR Sodagar, Insight into Different Aspects of Surrogacy Practices, JOURNAL OF HUMAN REPRODUCTIVE SCI.ENCES (November 20, 2019)http://www.jhrsonline.org/article.asp?issn=0974-1208;year=2018;volume=11;issue=3;spage=212;epage=218;aulast=Patel [iv] Supra Note 1 [v] Supra Note 1 [vi] Id. [vii] Id. [viii] World Health Report, 50 Facts: Global health situation and trends 1955-2025, WORLD HEALTH ORGANIZATION http://www.who.int/whr/1998/media_centre/50facts/en/ [ix] Malavika Ravi, A Critical Analysis Of The Surrogacy Regulation Bill 2016, FEMINISM IN INDIA (August 31, 2016) https://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/ [x] Id. [xi] Id. [xii] Arijeet Ghosh, Nikita Khaitan, A Womb of One’s Own: Privacy and Reproductive Rights, ECONOMIC AND POLITICAL WEEKLY (October 31, 2017) https://www.epw.in/engage/article/womb-ones-own-privacy-and-reproductive-rights [xiii] Id.