This article has been written by Miss. Shivani Gupta Law Student, Savitribai Phule Pune University, Pune.
This article has been approved by the Editorial Board of LegalOnus.
Abstract
According to the Surrogacy (Regulation) Bill 2019[1], surrogacy is the practice of a woman bearing a child on behalf of an intended pair with the goal of giving the child to the intended couple after delivery. This article covered the bill’s numerous clauses as well as the different kinds of surrogacy and the Indian government’s opinion of legislation. The bill has addressed the two forms of surrogacy: commercial surrogacy and altruistic surrogacy. The Altruistic Surrogacy conditions are presented in Bill[2]. The law also covers the granting of certificate of essentiality and eligibility by proper authorities. The appointment of relevant officials at the state and federal levels is another topic covered in the measure. They will be referred to as the State Surrogacy Board (SSB) and the National Surrogacy Board (NSB). The article also discusses penalties, which include fines of up to Rupees 10 lakhs and sentences of up to 10 years. The goal of the Surrogacy Regulation Bill is to control the surrogacy industry, which entails a woman bearing a child on behalf of another person or couple. Generally, the bill contains provisions that address who can participate in surrogacy, what circumstances allow it to be done, and what the rights and obligations of the intended parents, the child, and are the surrogate mother.
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Introduction
Around the world, women use surrogacy to give birth to a child on behalf of a couple seeking to expand their family. The surrogate mother gives birth to the child and then gives the infant to the couple. Before the Indian government abolished the surrogacy industry in November 2015, surrogates were responsible for more than 80 percent of births in the country. Several nations outlawed commercial surrogacy as a result. Several European nations outright forbade surrogacy in order to safeguard both the future of the child and the surrogate’s reproductive health.
The widespread exploitation and surrogate moms and their child raised questions about the unregulated surrogacy industry, prompting the nation to surrogacy regulation. This law ensures fair and ethical surrogacy practices while protecting the rights and well-being all parties are involved.
Historical Background
- India has become a hotspot for foreign couples seeking surrogates in recent year.
- Several instances of unethical behaviour, the exploitation of surrogate mothers, the abounding of surrogate children, and rackets involving the import of human embryos and gametes by middlemen necessitated the requirement for strict legislation on surrogacy.
- Usually, the surrogates are uneducated, low-income women from rural areas who are duped into performing these transactions by their spouses or brokers in an attempt to make quick cash. These women are not entitled to make choices regarding their own lives and bodies.
- Following their recruitment by for-profit organizations, these women are moved into hostels under the guise of receiving prenatal care. They aim to avoid the social disgrace being shunned by their group and cart them off. These women wind up worrying about their home and kids throughout the entirety of their pregnancy.
- Sometimes intended parents and surrogate moms are taken advantage of due to inadequate laws. The arrangement only benefits commercial agencies and intermediaries.
- However, the kid born out of the surrogacy agreement continues to be the most disadvantaged party. There have also been cases where the intended parent disowns the kid born via surrogacy as they are not linked to the child genetically, forcing the child to live in an orphanage for the rest of their life.
- The Indian Law Commission also emphasized the necessity of passing such legislation. The commission recommended banning commercial surrogacy in its 208th report, citing concerns about the widespread use of surrogacy by foreigners and the absence of an appropriate legal framework that leads to the exploitation of surrogate mothers, who may have been forced to become surrogates due to poverty and low educational attainment.
The Salient Features of a bill are as follow: –
- In order to ensure effective regulation, it provides for the establishment of surrogacy boards[3] at both the federal and state levels.
- It aims to permit the intended infertile Indian married couple, aged 26–55 for men and 23–50 for women[4], to use ethically altruistic surrogacy.
- The only Indian couples who can choose surrogacy are those who have been lawfully opt for a minimum of 5 years.
- The couple must get a certificate of eligibility and a certificate of essentiality prior to moving forward with surrogacy. It also specifies that intended couples will never abandon the surrogate kid they are planned to have.
- to specify that the child born via a surrogacy procedure will have all the rights and privileges granted to the biological child and that intended partners would not, under any circumstances, abandon the child;
Certificate of Essentiality
A district medical board issues this certificate of essentiality when it determines that one or both of the intended spouses are infertile. Furthermore, the magistrate court’s order pertaining to the surrogate child’s custody and parenthood must be followed. For sixteen months following the surrogate mother’s postpartum delivery problems, this certificate also insures against insurance risk. During such a surgery, the surrogate mother’s health needs must also be taken into consideration.
Certificate of Eligibility
The spouses must be citizens of India, have been married for at least five years, and fall between the ages of 26 and 55 for the husband and 23 and 50 for the lady. It’s important to keep in mind that the spouse shouldn’t have any biological, adoptive, or surrogate children. Additionally, children who are terminally sick, have a life-threatening illness, or are physically or psychologically unwell are not covered by this.
Provision under Surrogacy (Regulation) Bill, 2019
The “Surrogacy (Regulation) Bill 2019” contains several sections, however the main focus of this article is on the important provisions that the measure addresses overall for the advancement of society. Two categories of surrogacies have been addressed by the bill. Commercial and Non -Commercial Surrogacy. Altruistic surrogacy refers to situations in which the surrogate mother receives no financial compensation other than prenatal care and insurance coverage. The majority of the bill favours this kind of surrogacy, which also meets the needs of the modern culture. Since surrogate moms in particular have long been exploited, significant reforms to address this social issue are now required. The second kind of surrogacy is called “commercial surrogacy,” which entails financial rewards (either in kind or financially) that go above and beyond insurance and medical costs.
Conditions for Altruistic Surrogacy
- A couple who is childless is defined as having no children naturally for five years following marriage, having a medically proved infertility diagnosis, and falling within the age range of 26–55 for men and 23–50 for women.
- One of the requirements states that the surrogate mother has to be related to someone. Furthermore, in order to provide additional clarity, the bill must explicitly define “relative.
- A clause states that no money may be transferred to cover medical or insurance costs in order to avoid being viewed as an inducement.
- In order for a woman to serve as a surrogate mother, she must be between the ages of 25 and 35. She can only take on the role of surrogate mother once in her lifetime.
Prohibited Acts / Categories for Surrogacy
- Commercial Surrogacy
- Foreigners, NRIs and PIOs
- Homo-Sexual Couples
- People in Live-in relationships
- Single Parents
- Unmarried couples
Additional guidelines for the bill,2019
More explanation is provided, stating that a surrogate child would be regarded as the biological child of the intended couple. It also states that protections against the baby’s sex being chosen are included in the measure. It will be considered a crime. The bill promotes altruistic surrogacy, where a surrogate mother volunteers to carry the child without any monetary compensation except for the medical expenses and insurance coverage related to the pregnancy. It also bans foreign nationals, NRI couples, and a individual from seeking surrogacy services in India.
In addition, the following offenses are covered by the aforementioned 2019 bill:
- Promoting or participating in commercial surrogacy
- Neglecting, mistreating, or denying a surrogate kid
- Disregarding or refusing to accept a child raised by surrogacy
- Buying or selling human embryos or gametes for surrogacy
The aforementioned offences carry maximum prison sentences of ten years and fines of up to ten lakh rupees.
Reasons for banning India surrogacy
When Indian surrogacy originally peaked, there were no laws governing the business, which led to the development of risky and immoral practices. Surrogates are subjected to exploitation, subpar living conditions, and unethical treatment. The demand from foreign intended parents led to the effective operation of “baby factories” by Indian surrogacy companies.
Indian women were abandoned when they became pregnant and were forced to live without family support until they gave birth to their intended parents’ children. In India, surrogates are reportedly paid between $4,000 and $5,000, which is a small portion of the money the intended parents paid to the surrogacy firm. Commercial surrogacy involved the use of surrogates. Their constant attraction to the surrogacy process was a combination of financial gain, poverty, and lack of education. Their health consequently declined as they essentially turned into “baby-making machines” year after year. Even during this difficult journey, surrogate moms do not get the support resources they require for themselves and their families. The Indian government has attempted to take action to ensure that everyone involved in the process is secure for all of these reasons.
Key observation and recommendation[5] of the select committee are :-
- Altruistic versus commercial surrogacy: Surrogacy is the practice when a woman carries a child for another person with the intention of transferring the kid’s legal custody upon birth. The Bill forbids commercial surrogacy but allows selfless surrogacy. Other than covering the costs of pregnancy-related medical care and insurance, altruistic surrogacy does not pay the surrogate mother anything.
- The Committee suggested a compensation-based surrogacy paradigm as an alternative to selfless surrogacy. The surrogate mother must receive compensation to make up for her lost income and health. Committee observations revealed that women from low-income households have viewed surrogacy as a financial opportunity. The Bill prohibits commercial surrogacy, therefore ignoring the fact that altruistic surrogacy is also exploitative.
- The Committee suggested classifying surrogacy according to the particular purpose behind a woman’s decision to volunteer as a surrogate mother. Either (i) provide a paid service and profit, or (ii) act philanthropically, could be the motivation.
- As a result of being a “close relative,” the surrogate is only permitted to be a “close relative” of the intended pair under the terms of the Bill. The Committee noted that the restriction pertaining to having a “close relative” would damage people who are legitimately in need and limit the pool of potential surrogate mothers. There was a suggestion to redefine “close relative” and allow any willing woman to become a surrogate mother.
- Five-year waiting period: The Bill allows a couple to move forward with a surrogacy arrangement if, following five years of unprotected coitus or other medical conditions that prevent pregnancy, they are unable to conceive. The Committee noted that the five-year waiting period requirement is excessive, especially in cases where a natural pregnancy cannot be ruled out or if there is no uterus, fibroids, or uterine excision owing to malignancy.
- Insurance coverage: Bill offers a surrogate mother 16 months of insurance coverage. The Committee suggested making this a 36-month extension.
- Appeals: The surrogate mother and the intended pair must get certifications of eligibility and essentiality from the relevant appropriate
authorities after meeting certain requirements in order to begin the surrogacy procedure.
Approach in the Surrogacy (Regulation) Bill,2020
The new Surrogacy Regulation Act, 2020 was passed by the Union Cabinet on February 26, 2020, enabling any woman who is prepared to be a surrogate mother to do so. The Bill was shelved due to the COVID-19 pandemic, but it was later planned to be introduced as Bill 2021 in the Indian Parliament’s lower house during the ensuing session. Though it still adopts a needs-based rather than a rights-based approach, the Bill significantly addressed the problems of the Surrogacy Regulation Act of 2019; yet, before it can accomplish its intended goal and get presidential approval, it must become law.
The following are some of the primary characteristics of the proposed surrogacy laws:
- Establishment of regulatory bodies: The bill suggests that each Union Territory will have one or more capable authorities or agencies, a National Surrogacy Board at the federal level, and a State Surrogacy Board at the state level in order to govern surrogacy.
- Establish minimal requirements for the physical facilities, lab and diagnostic tools, and qualified personnel that surrogacy clinics must hire.
- Ban of commercial surrogacy: In its 228th report, the Law Commission of India suggested that appropriate laws be established to prohibit commercial surrogacy.
- It only permits altruistic surrogacy in order to stop the expansion of the uterine leasing market and shield surrogate moms from abuse.
- Commercial surrogacy is prohibited, which also implies that fashionable surrogacy—that is, surrogacy performed just for convenience as opposed to medical necessity—is prohibited.
- The term “fertility” is not included: – The surrogacy (Regulation) Act 2019 stated that in order for an intended couple to be qualified for the surrogacy process, at least one member of the couple must experience “proven infertility.” This definition of infertility was left out. But if the intended partner has a medical condition that necessitates gestational surrogacy, 2020 Bill changed what couples could be able to surrogate.
- A 35- to 45-year-old Indian lady who is widowed or divorced and plans to use surrogacy chooses surrogacy.
Conclusion
The Surrogacy Regulation Bill of 2019 aims to regulate the surrogacy market in India. One of its main characteristics is that it allows charitable surrogacy for Indian couples who are unable to conceive, but prohibits commercial surrogacy. The legislation aims to safeguard the rights and welfare of the surrogate mother as well as shield her from exploitation.
The focus placed by this bill on moral and regulated surrogacy procedures is one of its important findings. The measure aims to stop the exploitation of women and discourage the commercialization of surrogacy by limiting commercial surrogacy. Overall, the Surrogacy Regulation Bill of 2019 reflects a balanced approach to surrogacy, prioritizing ethical considerations, safeguarding the interests of surrogate mothers and children, and regulating the practice for the benefit of all parties involved.
[1] On July 15, 2019, Dr. Harsh Vardhan, the Minister of Health and Family Welfare, introduced the Surrogacy (Regulation) Bill, 2019 in the Lok Sabha.
[2] The Surrogacy Regulation Bill,2019
[3] to constitute the surrogacy board at the National or State level
[4] Surrogacy (regulation bill), 2016
[5] On February 5, 2020, the Select Committee on the Surrogacy (Regulation) Bill, 2019—whose chairman is Mr. Bhupender Yadav—submitted its findings.
