This article is written by Meenal Sharma, a student of Vivekananda Institute of Professional Studies. In this article, the author has talked about the consequences of banning commercial surrogacy in India.
Jothi Lakshmi, a mother of three boys, earned ₹3500 by working in a factory. In 2008, her husband left the home leaving her alone to take care of her children. It became impossible for her to feed her children with a meagre salary. In her past, she had donated an egg in a fertility clinic, so after leaving her home she approached the clinic again. There she was asked to become a surrogate mother instead. She decided to rent her womb to a couple who were in miserable condition as they could not have a baby. Her in-laws did not support her in her decision and never spoke to her during the time for which she was a surrogate mother. Naturally, she got attached to the baby which she carried in her womb for 9 months. When the time came to give away the baby, she did not even look at it as she could not bear the pain of parting away with the child. For two to three years, she was filled with sorrow and lost a lot of weight. But today, she does not regret it and has made peace with her decision.
Banning commercial surrogacy is a moral dilemma. Not everyone is fortunate enough to have children. There are many couples who are suffering from the trauma of not being able to give birth to children. Whereas there are many women belonging to underprivileged backgrounds who earn a handsome amount of money by renting their womb to such couples. On the other hand, there are situations where the surrogate mothers are exploited by the middlemen. The government has introduced a bill which bans commercial surrogacy and allows only altruistic surrogacy in certain conditions. In this article, we will discuss the Surrogacy (Regulation) Bill 2019, its shortcomings and the consequences of banning commercial surrogacy.
Laws in India
On 15 July 2019, Dr Harsh Vardhan, Minister of Health and Family Welfare introduced the Surrogacy (Regulation) Bill 2019 in Lok Sabha. He said the Bill was ‘the need of the hour’ as there are about 2000-3000 clinics in the country which are unregulated. The Bill regulates surrogacy by prohibiting commercial surrogacy and allows only altruistic surrogacy. Altruistic surrogacy is one where monetary compensation is not given to surrogate mothers. The insurance cover along with medical expenses are given to the surrogate mother or her representatives or her dependants.
Regulation of Surrogacy
Purpose of Surrogacy
Surrogacy is permitted only in the following situations:
- For couples who intend to have a baby but either one or both of them suffer from infertility;
- When surrogacy is altruistic and not commercial;
- It is not permitted for producing children for sale, prostitution or any other form of employment;
- In case of any condition or disease mentioned in the regulations.
Eligibility of the couple and surrogate mother:
Only couples who have a ‘certificate of essentiality’ and ‘certificate of eligibility’ can opt for the procedure of surrogacy.
Certificate of essentiality: The following conditions need to be fulfilled to obtain a certificate of essentiality:
- Certificate of proven infertility by the District Medical Board that either one member or both members of the couple who intend to have a baby are infertile.
- An order passed by the Magistrate of parentage or custody of the child born as a result of surrogacy.
- Insurance cover of 16 months including complications on the surrogate mother after delivery.
Certificate of Eligibility: The following conditions need to be satisfied:
- The intending couple must be Indians citizens married for a period of at least 5 years.
- The wife must be between the ages of 23 and 50 years, while the husband between the ages of 26 to 55 years.
- The intending couple must not have any biological, adopted or surrogate child including a child who is mentally or physically challenged or suffering from a life-threatening disorder or fatal illness.
- Any other condition mentioned under the regulation.
Eligibility of surrogate mother: The surrogate mother should also have a certificate from the appropriate authority which is obtained if the following conditions are satisfied:
- She must be a married woman having a child of her own, between 25 to 30 years of age of the implantation. She can be a surrogate mother or help in surrogacy by donating her egg. However, a surrogate mother cannot donate her own gametes.
- She must be a close relative of the intending couple.
- A woman cannot be a surrogate mother more than once during her lifetime.
- She must have a certificate of medical and psychological fitness to undergo surrogacy.
Within 90 days, the Central and State governments shall appoint appropriate authority for carrying out the following functions:
- To grant, suspend, cancel the registration of surrogacy clinics.
- To enforce standards for surrogacy clinics.
- To investigate and take actions against breach of the provisions of the Bill.
- To recommend modifications.
Surrogacy Clinics: Within 60 days from the date on which the appropriate authority has been appointed, clinics shall apply for registration. Unless, clinics are registered by the appropriate authority, they cannot undertake the procedures for surrogacy.
A child born out of surrogacy shall be the biological child of the intending couple. The surrogate mother has the option to withdraw from surrogacy till the time the embryo is planted in her. In case a situation arises where there is a need to carry out an abortion, it requires written consent of the surrogate mother as well as authorisation by the appropriate authority which shall be in compliance with the Medical Termination of Pregnancy Act, 1971.
Constitution of Boards
The Central and State governments shall appoint National Surrogacy Board and State Surrogacy Boards. The functions of the National Surrogacy Board are:
- To advise the Central Government on matters related to policy.
- To lay down the code of conduct for a surrogacy clinic.
- To supervise the State Surrogacy Boards.
Offences and Penalties
The penalty of committing offences mentioned under the Bill is imprisonment up to 10 years and fine up to ₹10 lakh. The following offences are included in the Bill:
- Advertising or undertaking commercial surrogacy.
- Abandoning, disowning or exploiting a surrogate child.
- Importing or selling embryos.
Consequences of banning commercial surrogacy
In India, the industry of commercial surrogacy was at one point business of $400 million a year. The Surrogacy (Regulation) Bill, 2019 which bans commercial surrogacy was passed in Lok Sabha on 5th August 2019. However, it is pending before the Rajya Sabha. The Bill aims to protect women from being exploited by the process of surrogacy. In India, many foreigners outsource their baby and the surrogacy clinics are often referred to as a ‘baby factory’ or ‘rent-a womb’. In 2015, the Indian government banned surrogacy for foreign nationals. Moreover, surrogates are often exploited by the middlemen and are extorted, underpaid, blackmailed, are devoid of insurance and their health is often overlooked.
While it is not easy for the surrogate mother to give away a baby, she obtains a handsome amount of money which can improve her living conditions. The aim behind the Bill is to protect women from being exploited although it can lead to situations where infertile couples resort to illegal measures by opting for commercial surrogacy as it is hard to approach a relative or a known woman to be a surrogate mother. The infertile couples should not have to suffer from such immense emotional trauma of doing something illegal for fulfilling their dream of parenting.
By banning commercial surrogacy, the fundamental rights of women are being violated. Right to make reproductive choices is a fundamental right under Article 21 of the Constitution. Making reproductive choices like giving birth to a child is the right of a woman and is a matter of personal liberty.
Why altruistic surrogacy should not be imposed upon infertile parents
While altruistic surrogacy allows infertile parents to approach their relatives or friends which sounds convenient as there is no mandate of compensating the surrogate mother, it is not that smooth sailing as it seems.
It is always better if the surrogate mother is unknown to the intending couple. In cases where the surrogate mother is a relative or a friend of the parents, it can lead to complicated situations later in the life of the surrogate child. Since altruistic surrogacy does not mandate remuneration, it can lead to inconvenient situations for the surrogate mother who is known to the intending parents. The surrogate mother might have to bear heavy expenses which she might not be comfortable asking from the parents. Whereas in commercial surrogacy, the surrogate mother would not shy away from seeking reimbursement from the intending parents.
In an altruistic surrogacy, there are no background checks done on the surrogate mother to test her physical capacity, while in commercial surrogacy a good agency would conduct numerous background checks to ensure that the surrogate mother is fit to carry the baby. Also, the intending parents don’t have a lot of options in choosing a surrogate mother as a lot of relatives might not be willing to undergo the process. Further, in altruistic surrogacy, it can create a strain in the relationship of the surrogate mother with the intended parents because of their peculiar situation.
The Surrogacy (Regulation) Bill, 2019 has various shortcomings such as:
- It only includes cases where either one or both the parents are infertile. There is no provision for situations where the women might be able to conceive but fit to carry the child for 9 months such as uterine fibroids.
- It only makes provisions for altruistic surrogacy which has proved to be a failure in many other countries.
- It does not have any provision about unmarried couples, gay couples, and single parents.
- It does not talk about the situation of Non-Resident Indians who want to come back to India to have a child.
Banning commercial surrogacy will not prove to be fruitful as there are many women who have managed to improve their condition of life by being a surrogate mother as they earn a good amount of money. If done in the right manner, commercial surrogacy has the potential to bring joy to couples who are unable to become parents and monetary support to underprivileged women. The law regulating surrogacy shall be formulated keeping in mind the following:
- The need of the hour is to provide legal support to contracts between the surrogate mother and the parents who are unable to conceive a child. As many surrogate mothers are being exploited by middlemen and agents there is a need to regulate the law relating to surrogate contracts.
- The contracts between surrogate mother and the couple should ensure various conditions such as the well being of the surrogate mother as well as an insurance cover that she is treated in a way that a pregnant woman is treated.
- Moreover, the opinion of the stakeholders needs to be taken into account while formulating surrogacy laws.
- Provisions relating to the privacy of the surrogate mothers need to be included in the law. Also, provisions should be made regulating the health of surrogate mothers.
- The government has banned foreign citizens from the purview of surrogacy. However in certain situations, the embryos have already been planted in surrogate mothers, but the government has imposed restrictions on exports as well as imports of the embryos. Now, these foreign citizens demand that their embryos be returned to them. Situations like these also need to be regulated by the surrogacy law.
Laws in other countries
Commercial surrogacy is banned in Canada, Denmark, New Zealand, United Kingdom and Australia (except a certain northern territory). These countries allow certain forms of altruistic surrogacy. Till 2015, commercial surrogacy took place in Thailand. Later commercial surrogacy was banned for foreigners after certain cases were reported including a case where an Australian couple abandoned a surrogate child who was born with Down syndrome.
Countries like France, Spain, Germany, Italy, Bulgaria and Portugal prohibit surrogacy of all kinds. In the United States of America, there are no laws that regulate surrogacy at the federal level, however certain states allow commercial surrogacy. Russia allows all kinds of surrogacy and there exist no laws regulating surrogacy in Cambodia. Countries like Ukraine and Georgia are now emerging as the new surrogacy hubs as there are no laws regulating surrogacy in those countries.
The Surrogacy (Regulation) Bill, 2019 imposes a complete ban over commercial surrogacy which has proved to be a good source of income for various underprivileged women over the country. It imposes altruistic surrogacy over the intending parents which are based on mere moralistic assumptions rather than on reasonable scientific criteria. Moreover, banning commercial surrogacy violates the right of women to exercise their reproductive rights which is a matter of their personal liberty. No doubt, a large number of women are exploited in the name of commercial surrogacy.
The need of the hour is to regulate surrogacy and create stricter laws rather than banning it completely. The surrogacy contracts should be legally backed and provisions should be made to ensure good health conditions and insurance cover for surrogate mothers. Altruistic surrogacy which is being imposed by the Bill has failed in various other countries. Moreover, it is always better if the surrogate mother is unknown to the intending parents as it can create complicated situations in the relationship of the surrogate mother, surrogate child and the biological parents.
- https://m.economictimes.com/magazines/panache/banning-commercial-surrogacy-will-expose-women-to-exploitation/articleshow/53889509.cms#:~:text=Banning%20commercial%20surrogacy% 20will%20expose%20women%20to%20exploitation,-Aug%2028%2C%202016&text=The%20Surrogacy%20Bill%2C%202016%2C%20claims,to%20act%20as%20surrogate%20mothers.&text=Homosexuals%20and%20single%20parents%20cannot,against%20%E2%80%9Cthe%20Indian%20ethos%E2%80%9D.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: