Surrogacy: Regulation or Restrictions
This article is written by RUDRAKSHI SHARMA and in this article, she explained the rules and regulations related to surrogacy.
An introduction to surrogacy
In 2002, surrogacy was first legalized in India. The term “commercial surrogacy” means an arrangement in which the surrogate mother is compensated for her services beyond the reimbursement of medical expenses and insurance money. In the next decade, the industry hiked remarkably, estimated to $2billion a year business.
On one side where the business was resulting well for the finance industry, it was constantly disquieting the legal industry. Between 2002 and 2015 there were many incidents clearly stating the disdain of rights of a surrogate mother, lack of laws, and the loopholes in the existing ones.
The case of Baby Manji Yamada in 2008 was the turning point for the industry. In 2007, a Gujrat infertility clinic doctor, made the arrangements for a Japanese couple to have a child by surrogacy. The surrogate mother was impregnated using the father’s sperm and anonymous Indian woman’s egg.
However, during the gestation period the couple filed a divorce, due to lack of laws the custody of the child came into question, whom does the child belong to: the father, the woman whose egg was used or the surrogate mother. In the meantime, there was petition filed against the doctor stating that he runs a child trafficking racket and was making money from surrogacy due to lack of laws to regulate the system.
The case was resolved when the grandmother of the child took her in, but by then the loopholes and drawbacks of commercial surrogacy had entered the public’s concern. There were many more instances reported, like in 2012 an Australian couple had twins by opting surrogacy but they rejected one and took another with themselves, then there was case of Chennai single mother who opted to be surrogate mother so that she could earn but was given minimal amount of money and the autowallah who acted as a middlemen took 50% of the money.
In 2014 a 26-year-old woman died because of complications from a surgical procedure to harvest eggs from her body for an egg donation programme at private clinic in New Delhi.
In addition to series of PILs the 228th report of Law Commission recommended ban on commercial surrogacy and allowing altruistic surrogacy. The exploitation of women who opt to become surrogate mother due to paucity of resources and easy abandonment of children born in these situations directed the Union cabinet to approve the Surrogacy (Regulation) Bill, 2016.
The bill banned all types of commercial and allowed altruistic surrogacy. The term “Altruistic surrogacy” means an arrangement between a couple and a surrogate without any transfer of funds, except for the payment of medical expenses. The bill was introduced and passed in Lok Sabha in 2016 but lapsed owing to the adjournment sine die of the parliamentary session.
The bill constituted the following points
Banning commercial surrogacy and allowing altruistic surrogacy.
Eligibility for the couple intending to opt for surrogacy:
- The couple should be married for over 5 years and at least one to be declared infertile.
- The couple must have Indian citizenship.
- The female age limit varies from 23 to 50 years and male age varies from 26 to 55 years.
- They must not have sound mind biological child of their own.
Eligibility for the woman who opts to become surrogate mother:
- Should be a close relative of the couple.
- Must be married and have child of her own.
- Can become surrogate mother only once in her life time.
- Age limit varies from 25 to 35 years of age.
- The child born through surrogacy will have the right of a biological child.
While the bill states to regulate the surrogacy procedure it silently restricts it. The medical community, and even some factions of the general public have criticized the bill for being discriminatory and draconian even while it has been understood as necessary in curbing the ‘baby-making industry’. The new bill welcomes criticism on the following grounds:
- The bill does not include single females and males, homosexual couples, unmarried couples, single parents and couples with children (biological, adopted or surrogate)
- The bill does not define the term “close relative”.
- It indirectly promotes adoption.
- Woman who saw surrogacy as an opportunity to earn will not be able to avail the benefits.
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In 2019 the bill was reintroduced in Lok Sabha and was passed on 5th august,2019. The bill currently is in Rajya Sabha which has appointed a select committee to look into the controversial points of the bill and suggest changes accordingly. The proposed changes include:
- it allows any “willing” woman to be a surrogate mother.
- Deleting the definition of “infertility” as the inability to conceive after five years of unprotected intercourse on the ground that it was too long a period for a couple to wait for a child.
- It proposes to regulate surrogacy by establishing a National Surrogacy Board at the central level and State Surrogacy Board and appropriate authorities in states and Union Territories respectively.
- The proposed insurance cover for surrogate mothers has now been increased to 36 months from 16 months.
- Commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes.
- Only ethical surrogacy to Indian married couples, Indian-origin married couples and Indian single woman(only widow or divorcee between the age of 35 and 45 years) will be allowed on fulfilment of certain conditions.
We still wait for Rajya Sabha to make a decision according to the changes proposed by select committee. The people of India look up to Rajya Sabha to acknowledge the rights of each and every citizen and especially the LGBTQ committee after stating section 377 unconstitutional.
We have to accept that these issues are never black or white so that we can move on and focus on the grey expanse. You cannot term certain arrangement “wrong” when they actually without any pressure benefits some people. The commercial surrogacy lacks regulation but is definitely beneficial for the women who willingly opts to become a surrogate mother and sees this as a stable opportunity to earn livelihood.
As well as altruistic surrogacy is non -exploitative but still proves to be inconvenient to major part of the society and results in restriction than regulation. It is not commercial versus altruistic but benefits of restructuring versus outright banning, and the question of consent versus exploitation. If we are able to recognize the actual problem then we can come up with solutions that have actual on-ground impact.
 Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518