Surrogacy (Regulation) Bill 2019

The Surrogacy (Regulation) Bill, 2019 introduced by the Minister of Health and Family Welfare was passed in the Lok Sabha.

Features of the Bill

• The Bill proposes to regulate surrogacy in the country by establishing a National Surrogacy Board at the central level and state surrogacy boards and appropriate authorities in the state and Union Territories.
• The bill is aimed at effective regulation of surrogacy by prohibiting commercial surrogacy and allowing ethical surrogacy.
• The bill allows 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.
• The bill allows women aged between 25 and 35 years of age to act as a surrogate mother only once.
• The bill further mandates that the surrogate should be a close relative of the intending couple. She should be married and have a child of her own.

Criticisms against the Bill

• The bill is criticised for its high hardness in dealing with the social issue.
• The bill is criticised for its heavy reliance on criminal law for managing social issues, criminalisation of choice and prejudiced ideas of what constitutes a family.
• The bill stipulates that only a man and woman married for at least five years, where either or both are proven infertile, can avail of surrogacy and it disallows single, divorced or widowed persons, unmarried couples and homosexual couples from pursuing surrogacy to have children. This is seen as blatantly discriminatory and arbitrary.
• The bill completely overlooks India’s jurisprudence which allows single persons to adopt children.
• The bill fails to recognise the reproductive autonomy of single persons, the rights of persons in live-in relationships and fundamental rights of transgenders. The observations made by the Supreme Court in the case of Navtej Singh Johar vs Union of India where it decriminalised consensual same-sex between consenting adults and held that the law cannot discriminate against same-sex partnerships and that it must “take positive steps to achieve equal protection has been completely disregarded.
• The bill failed to recognise that guidelines issued by Indian Council of Medical Research in 2002 and the draft Assisted Reproductive Technologies (Regulation) Bills 2010 and 2014 had permitted commercial surrogacy.
• There is a danger of exploitation and abuse in commercial surrogacy. The cases also have come up establish such exploitative tendencies. The Surrogacy (Regulation) Bill, 2019 aims to formulate a law on the basis of these exceptions rather than the norm.
• The bill fails to recognise that exploitation was taking place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. Rather than providing for a strong regulatory mechanism that introduces transparency and mandates fair work and pays for the surrogate mothers, the bill is altogether banning commercial surrogacy.
• Banning commercial surrogacy may only expand the potential for exploitation as it would force the business underground or even to neighbouring countries such as Nepal.
• The Bill while banning commercial surrogacy makes it clear that the surrogate mother must be a “close relative” of the couple. This is based on the mistaken premise that exploitation and vulnerability do not exist within the family. The very nature of patriarchal families in India, the stigma of infertility, the pressure of producing children to maintain the lineage and the low bargaining power of women, can result in young mothers being coerced into becoming surrogates for their relatives.
• The Bill mandates the commissioning couple to only pay for the medical expenses and an insurance cover of sixteen months for the surrogate mother. The bill has disregarded the model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, childcare support, dietary supplements and medication, maternity clothing and post-delivery care.

Over the years India has emerged as a surrogacy hub for couples even from different countries. The lack of legislation to regulate surrogacy has resulted in the practice being misused by surrogacy clinics leading to rampant commercial surrogacy and unethical practices. The bill which was aimed at plugging these regulatory lacunas is criticised as a poor attempt at regulating reproductive technologies and preventing exploitation of women.