The author of this article is Ishika Jindal, student of Hidayatullah National Law University, Raipur. The article covers every aspect of the Bill and also draws attention towards its concerns.
The Surrogacy (Regulation) Bill, 2019 was presented in the Lok Sabha by Dr. Harsh Vardhan, Minister of Health and Family Welfare on July 15, 2019. Inline next, were the following developments:
Introduction of the proposed bill
July 15, 2019
The bill passed
Aug 05, 2019
Bill referred to Select Committee under Shri Bhupender Yadav
Nov 21, 2019
Report of Select Committee presented
Feb 05, 2020
The bill aims at eliminating commercialisation of surrogacy in India. However, it authorizes altruistic surrogacy wherein the surrogate mother is entitled to no other monetary payment other than her medical outlays and insurance coverage for the course of pregnancy. On the other hand, commercial surrogacy means the surrogate mother is provided with monetary benefits (in cash or kind) over and above her basic medical outlays and insurance coverage.
What is Surrogacy?
The term ‘Surrogate’ is derived from the Latin word ‘Surrogatus’ meaning a woman functioning in another woman’s place. The said bill defines “surrogacy” as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.
Traditional Surrogacy and Gestational Surrogacy are the two different types of surrogacy. In the former, the surrogate is the biological mother of the child since her own eggs are used for fertilization. Whereas in the latter, the surrogate has no biological relationship with the child since in vitro fertilization (IVF) is practised. In IVF, eggs and prepared sperm of the intending couple are brought together in a dish in the laboratory and fertilisation takes place outside the body (in vitro = in glass). This is then placed inside the surrogate’s womb.
Surrogacy is usually undertaken by couples who find it impossible to have a child without assistance. Surrogacy helps them to fulfil their longing for a child.
Grounds on which Surrogacy is Allowed
Surrogacy is allowed when it is:
- Altruistic Surrogacy, i.e. not Commercial Surrogacy.
- For couples proven sterile.
- For having children not meant for the purposes of sale, prostitution, or any other form of exploitation.
- Undertaken because of any condition or ailment duly stated.
Eligibility Criteria for a Surrogate Mother
The Assisted Reproductive Technology or ART (Regulation) Bill, 2010 defines the “surrogate mother” as, a woman who is a citizen of India and is resident in India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the couple/individual that had asked for surrogacy.
The authorities grant a ‘Certificate of Eligibility’ to the surrogate mother if she:
- Is a close relative of the intending parents.
- Has a spouse and an offspring of herself.
- Is between 25 to 35 years old.
- Has never been a surrogate before.
- Is declared medically and mentally fit to act as a surrogate.
- Is willing to undergo gestational surrogacy, i.e. have no biological relationship with the child.
Which Intending Couple is Eligible for Surrogacy?
The couples in order to be eligible for surrogacy must possess:
- A ‘Certificate of Essentiality’, which is issued to couples proven infertile by the District Medical Board. An order by the Magistrate Court giving them the custody of the surrogate child should be present. Insurance coverage (16 months) for the surrogate mother is also required.
- A ‘Certificate of Eligibility’, which is issued to couples.
- Who has been married for a minimum period of 5 years and are the citizens of India.
- Where the wife is between 23 to 50 years old and the husband is between 26 to 55 years old.
- Who does not have a living child (biological, adopted or surrogate). However, it does not take into consideration a mentally unstable or a physically handicapped child; also a child having any deadly or critical diseases.
- Subject to any other directives required.
Who is banned from Surrogacy?
A single parent is someone who is either widowed, divorced, or unmarried and is bringing up a child on their own because the other parent is not with them.
Couples wherein sexual relationships exist between two adults of the same sex, i.e. either two men or two women. They are also called homosexuals.
Divorced or widowed persons
Divorce refers to the legal dissolution of marriage. Whereas, when a person loses their partner because of death, they become a widow/widower. In both cases, they are not allowed to have a surrogate child.
This term is used for individuals whose sense of personal identity and gender does not correspond with their biological sex or does not easily fit in the usual division between male and female. One should not confuse transgenders with homosexuals. Both are fundamentally different.
A live-in partner is someone who lives in the same house as the person they are having a sexual relationship with, but is not married to them.
Foreigners from hiring a surrogate in India
Foreign nationals or Overseas Citizens of India (OCI) who wish to use a surrogate mother in India are banned from doing so by the Surrogacy (Regulation) Bill, 2019 in order to prevent exploitation of Indian women.
The Parentage of Surrogate Child
The intending parents are considered the biological parents of the surrogate child. Similar rights and privileges are available to a surrogate child as are available to a natural or adopted child. After the surrogacy procedure is complete, the surrogate mother gives the child to the intending couple. The surrogate mother has no right over the child.
Abortion of Surrogate Child
A surrogate child can be aborted. This is possible only with the written consent of the surrogate mother and accreditation by the proper authority in compliance with the Medical Termination of Pregnancy Act, 1971. Further, no one can force the surrogate mother to undergo an abortion. A surrogate mother also has the opportunity to withdraw from the surrogacy procedure before the embryo is placed in her womb.
The bill does not talk about maternity/paternity leave for either the surrogate mother or the intending parents. It contains no such provision. However, members of the Rajya Sabha want the bill to encompass that surrogate mothers be granted maternity leave. On the other hand, in Sadhna Agrawal v. State of Chhattisgarh and Ors., it was held that the intending mother is entitled to get maternity leave. It comes under her right to life under Article 21 of the Constitution which includes her right to motherhood and also the right of every child to full development. Further, as per the All India Services (Leave) Rules, 1955, the Central Government has also acknowledged paternity leave to intending fathers. In the case of K. Kalaiselvi v. Chennai Port Trust, it was clearly stated by the Madras High Court that paternity leave is to be granted to the father obtaining a child through surrogacy procedure.
NSB, SSBs and apt Authorities
The bill directs the central and state governments to constitute the National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) and appoint appropriate authorities (within 90 days after enactment of the Act); all three have specific functions to perform.
Functions of the NSB
- Counselling the centre on policy matters concerning surrogacy.
- Devising a code of conduct governing the surrogacy clinics.
- Setting standards for infrastructure and equipment used in surrogacy clinics.
- Exercising supervisory control over the SSBs and other authorities.
Functions of SSBs
- Evaluating the work done by authorities functioning in their respective states.
- Implementing the provisions of the bill.
- Sending their work reports to the central government and the NSB.
- Registering surrogacy clinics, which cannot function prior to registration.
- Rejecting or cancelling the above registrations.
- Implementing guidelines and quality levels for surrogacy clinics.
- Inspecting and taking action against offenders of the bill.
- Suggesting changes in the rules and regulations.
Offences covered in the Bill
The bill advocates imprisonment up to 10 years and/or a fine up to 10 lakh rupees for the following wrongs committed in violation of its provisions:
- Practising or marketing commercial surrogacy.
- Victimising the surrogate mother.
- Deserting, abusing or renouncing a surrogate child.
- Trading in human fetus or gametes for surrogacy.
Major Concerns regarding the Bill
Although the bill has raised many concerns, the following are the major concerns regarding the Surrogacy (Regulation) Bill, 2019:
Restricting surrogacy to close relatives
It may lead to increased family pressure on women because of limited choice. The objective of preventing exploitation of surrogates cannot be achieved in such situations.
Loss of a means of living
Many women become surrogates for monetary reasons and see surrogacy as a way to elevate from their poor economic conditions. With the ban on commercial surrogacy, the same is not possible. The bill expects surrogacy to be done out of the goodness of a woman’s heart for free.
The bill makes surrogacy a cumbersome procedure. Requiring the couple to be certified infertile is both a violation of their right to privacy and essentially moralistic. Besides, banning gay couples, live-in partners, single parents, etc. from getting a surrogate seems irrational.
Permission for abortion
The bill states that approval for abortion is to be given within 90 days. However in some cases, due to medical emergencies, the surrogate mother cannot wait for long. Therefore, post-abortion approval should be permitted.
Waiting time of 5 years
Only those couples who have been married for a minimum period of 5 years are allowed to undergo surrogacy. This limit should be waived off. Nowadays, people do not marry at an early age and waiting for another 5 years to get a child does not serve in the best interest.
The Surrogacy (Regulation) Bill, 2019 which bans commercial surrogacy and preaches altruistic surrogacy is a game-changer for the surrogacy industry. It completely changes the scenario with a set of new rules and regulations, like setting up of the NSB and SSBs, surrogates to be close relatives of the intending couple, couples to be married for at least 5 years to be eligible for surrogacy, etc. Although the bill has some excellent provisions, changes and additions are required for improvement. In a society like India, for couples who find it impossible to have children without assistance, surrogacy proves to be a precious gift.
- The Surrogacy (Regulation) Bill, 2019, No. 156 of 2019, Bills of Parliament, (India), http://18.104.22.168/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf.
- Peter Braude & Paula Rowell, Assisted Conception II – In Vitro Fertilization and Intracytoplasmic Sperm Injection, 327 (7419) BMJ 852 (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC214030/.
- The Assisted Reproductive Technology (Regulation) Bill, 2010, Bills of Parliament, 2010 (India).
- Transgender, Oxford Learner’s Dictionaries, https://www.oxfordlearnersdictionaries.com/definition/english/transgender.
- Live-in, Collins English Dictionary, https://www.collinsdictionary.com/us/dictionary/english/live-in.
- Manu Gupta, Surrogate Mother- A Commodity For Infertile Parents, Scribd, https://www.scribd.com/document/146639473/Surrogate-Mother-A-Commodity-for-Infertile-Parents-manu-Gupta.
- Sadhna Agrawal v. State of Chhattisgarh and Ors., MANU/CG/0017/2017, https://indiankanoon.org/doc/129367316/.
- Article 12, The Indian Constitution, https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf.
- The All India Services (Leave) Rules, 1955, https://dopt.gov.in/sites/default/files/Revised_AIS_Rule_Vol_I_Rule_03_0.pdf.
- K. Kalaiselvi v. Chennai Port Trust, MANU/TN/0157/2013, https://indiankanoon.org/doc/28691523/.
- Sharanya Gopinathan, Explainer: Everything that’s wrong with the Surrogacy (Regulation) Bill, The News Minute, https://www.thenewsminute.com/article/explainer-everything-s-wrong-surrogacy-regulation-bill-93700.
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