This article is written by Yash Singhal, a second-year student of Vivekananda Institute of Professional Studies, New Delhi. This is an exhaustive article on the provisions of The Surrogacy (Regulation) Bill, 2019 along with a critical analysis while providing arguments from each side.
Table of Contents
Surrogacy as a practice in India has been carried out from centuries to help those unfortunate couples who are unable to conceive due to natural problems like infertility, same-sex couple, age factor. The government realised the requirement of regulating the practice of surrogacy so as to protect the interests of all parties involved in the procedure staying within the reasonability clause while imposing restrictions. The Surrogacy (Regulation) Bill, 2019 was introduced for such regulation purposes by the Ministry of Health and Family Welfare.
What is Surrogacy?
An artificial procedure to conceive a baby in the womb of a surrogate mother by the use of medical expertise and available medical technology. There are two types of surrogacies identified:
- Traditional Surrogacy – The procedure includes the artificial insemination of the sperm of the intended father into the body of the surrogate mother to let it fuse with her egg. In such a procedure, the baby so conceived would be biologically related to the surrogate mother and the donor father with genes from both individuals.
- Gestational Surrogacy – This procedure is more complicated among the two but widely accepted in modern times. The egg of the intended mother and the sperm of the intended father are fused in a laboratory and the embryo is placed in the body of the surrogate mother. There is no genetic relation of the surrogate mother with the baby.
Every couple has a desire to expand their family with children yet some couples are unable to conceive due to infertility of either or both the partners. The couple has an alternate option of hiring a surrogate mother to conceive a baby for the couple in her womb and get monetary or non-monetary benefits in return. This is the most common reason for surrogacy.
Other reasons include same-sex couples who naturally cannot conceive a baby due to their limitations which pushes them towards surrogacy.
Age is another reason for surrogacy as couples lose their ability to conceive. Couples with decreased fertility favour surrogacy.
The adoption procedure being complicated and lengthy drives the couples to adopt surrogacy over adoption. There is a preference for a blood-related child over any adopted child with traditional beliefs of blood-relations and natural acceptance.
Surrogacy (Regulation) Bill, 2019
The Ministry of Health and Family Welfare introduced The Surrogacy (Regulation) Bill, 2019 on July 15, 2019, in the Lok Sabha. The Act, when enacted, would extend to the whole of India except the region of Jammu and Kashmir. This bill was introduced to regulate the practice of surrogacy for the benefit of the surrogate mothers who are exploited in this ‘rent a womb’ business. The government identifies the issue with commercial surrogacy which is characterized as a practice of renting the womb on the promise of monetary benefits exceeding medical expenses.
Purposes for which Surrogacy Permitted
Section 4(ii) of the Bill has provided with the conditions exclusively under which the surrogacy is permitted in India:
- The intending couple who wish to practice surrogacy must suffer from proven infertility through medical reports.
- Only altruistic surrogacy to be permitted which is for genuine help of intending couples without any monetary return except for the medical expenses.
- It restricts commercial surrogacy which is practiced by surrogate mothers for the purposes of monetary returns.
- The children born out of surrogacy must not be subjected to any sort of exploitation, prostitution or sale to other persons.
- The couple suffers from any disease or condition as specified under regulation.
Intending Couple Eligibility
Section 4(iii)(a) of the Bill states that eligibility criteria for the intending couple has been established under the bill for them to undergo surrogacy. The couple needs to gather a ‘certificate of essentiality’ and a ‘certificate of eligibility’.
- Certificate of essentiality is obtained by the intending couple on the fulfilment of certain conditions:
- Certificate of proven infertility of the couple issued by District Medical Board
- Custody of the child passed to the couple by Magistrate Court
- 16 months of insurance to maintain the surrogate mother for her medical expenses which include healing procedures.
- Certificate of eligibility is issued on the fulfillment of other set of requirements:
- The couple is to be of Indian nationality
- The couple is to be married for at least 5 years
- The wife should be between 23 to 50 years and the husband should be between 26 to 55 years.
- The couple does not have any other surviving child through adoption, surrogacy or biologically unless the child is mentally or physically challenged. Any child suffering from any life threatening disorder or disease is excluded from this condition.
- Any other condition specified by the regulations
Surrogate Mother Eligibility
Section 4(iii)(b) of the Bill states that certification of eligibility by appropriate authority is required by the surrogate mother under fulfilment of the following conditions placed by the bill:
- The surrogate has to be a close relative of the couple;
- The surrogate mother must be a married woman who has a child of her own;
- The woman shall be 25 to 35 years old;
- Only once in a lifetime a woman can be a surrogate;
- Certificate of physical and psychological fitness for surrogacy.
National and State Surrogacy Boards
Chapter V of the Bill advocates for the establishment of National and State Surrogacy Boards by the Central and State Governments.
These National Surrogacy Boards are constituted under Section 14 of the Bill, provided with the task of advising the Central government on the matters related to surrogacy, laying down guidelines of accepted conduct of surrogacy clinics, and supervising the work of State Surrogacy Boards.
Under Section 23 of the Bill, the State Surrogacy Boards have functions to review the authorities concerned with surrogacy matters and recommend action against them, to monitor implementation of the Act in states, and to send all the reports as to activities undertaken by the state to the National Surrogacy Board.
Penalties for Offences
In Chapter VII of the Bill, the offences have been identified under this bill and penalties prescribed for commission of such offences.
Involvement in commercial surrogacy through advertising or practicing, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy are the offences under this Act. Every offence under this Act is cognisable, non-bailable, and non-compoundable.
The punishment for commission of these offences is imprisonment for 10 years and a fine up to 10 lakh rupees.
Arguments favouring the Bill
The Surrogacy (Regulation) Bill, 2019 has been passed in Lok Sabha but is currently pending in the Rajya Sabha. The Ministry of Health and Family Welfare introduced the Bill to support the intending couples along with the surrogate mothers while placing certain reasonable restrictions on the practice of surrogacy.
The commercial surrogacy that was prevalent in the past was a practice that was taken advantage of by the intending couple to obtain the surrogate child by renting a womb on a commercial basis. The foreign nationals would visit India to undergo commercial surrogacy with the overall cost of the whole procedure of surrogacy is lower here than any other country, also the availability of surrogate mothers in need of monetary benefits in return of their womb is high in India making it a hub for foreign infertile couples. The legality of commercial surrogacy in India allows the couples from countries with opposite treatment to surrogacy, to travel to India and undergo surrogacy.
The mandatory condition of the intending couple to be of Indian nationality with 5 years of legal marriage eligible to undergo surrogacy procedure has protected the practice from being exploited. The ethical altruistic surrogacy from related persons that are allowed under this Bill, would prevent the oppression of ‘rent a womb’ industry by affluent families. The surrogacy clinics have been reported of mistreatment to the intending couple or the surrogate mother due to lack of legislation in the matter, which would be resolved with the enactment of the said Bill. The unethical activities of selling or forcing the surrogate child into prostitution to earn has been banned by the provisions of the bill, as it violates the right to a dignified life of the child under Article 21 of the Constitution of India.
This case was about a child who was born in India to a surrogate mother for a Japanese couple. The Japanese couple separated a month before the birth of the child. The Japanese father wanted to take the child with him to Japan but lack of legal framework on such regard in Japanese laws restricted the travel of the child to Japan. The Supreme Court of India decided the matter allowing the grandmother to take the child out of the country.
This case drove the government to make strict regulations on the practice of surrogacy.
Criticism of the Bill
The bill has faced criticism from all corners with its restrictive approach in matters of surrogacy. The specific clauses regarding the age limit permissible for the intending couple or the surrogate mother, ban on commercial surrogacy, only heterosexual couples with 5 years of marriage are allowed to undergo surrogacy, have been in contravention with the Fundamental Rights. The government has the power to impose reasonable restrictions on the Fundamental Rights but the restrictions placed in this bill have gone beyond such permissible limits. The usage of terms like ‘close relatives’ without any clear distinction as to the proximity of which relations would be taken into consideration. The lack of clarity on some issues has rendered the Bill ineffective.
Constitutionality of Surrogacy Bill
Article 14 of the Constitution of India states equality before law and equal protection of law. The Doctrine of Reasonable Classification has been interpreted to be under the provisions of Article 14 through judgements, mentions that the class legislation shall be forbidden while enacting a law, also, the classification shall stand the test of intelligible differentia with the object of the Act being in nexus to the classification made. The legislation must not make improper discrimination by conferring privileges upon a ‘class of persons’ or arbitrarily selected persons without special characteristics that differentiate them from the rest.
The Bill places such restrictions which do not qualify the test of reasonable classification due to the limited and conditional access to some married couples falling within the prescribed age limit for the intended couple and the surrogate mother. The Bill also disqualifies people from undergoing surrogacy on the basis of their nationality, marital status, time period of marriage, age of the people involved, sexual orientation and other such parameters.
The case states that the intelligible differentia provided in the doctrine of reasonable classification shall be decided on the fulfilment of certain guidelines formulated in the case. Any law in violation of such guidelines would be deemed violative of Article 14.
Under the Bill, any individual who has been discriminated against on being falling into the restrictions placed can also be treated as a class, also the vagueness of the terms used would reduce the legislation’s capacity to impose restrictions.
The Constitution of India does not directly deal with surrogacy but has been included in the widest ambit of Article 21 through various judicial pronouncements. The right over own body along with right over reproduction has been provided under Right to privacy, which is identified as a fundamental right by the Supreme Court of India under Article 21.
The case states that the ‘right to life’ includes ‘right to privacy’. An individual has the right to decide over matters such as family, marriage, procreation, motherhood, childbearing among other things.
The case states that the right over decision of reproduction falls with the right to privacy. The right over control of the body on reproductive matters is the personal choice of the individual.
When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s privacy.
The case states that the reproductive choices of the women is their constitutional right citing personal liberty under Article 21 of the Constitution of India.
The government has imposed restrictions on certain categories of individuals from undergoing surrogacy according to this bill. Surrogacy is an individual choice that shall not be subjected to limitations on the basis of age of people involved in the practice which is immaterial ground to be concerned with. The right of informed decisions over one’s own body should be provided to every individual who understands its body more than any other person.
The Surrogacy (Regulation) Bill, 2019 has been a matter of countrywide debate due to the restrictive nature of its provisions. The bill has made limitations as to what are the necessary requirements to be indulged in the practice of surrogacy. The proponents of the Bill contend it is within the reasonable limitations to safeguard the surrogate mothers and children from any sort of exploitation in the hands of the intended couple. The opponents raise the issue of the Bill violating the Fundamental Rights of the individuals by going beyond the authority held by the government while enacting laws.
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