Lok Sabha on 20th December passed with a voice vote, the Surrogacy Regulation Bill, 2016 (‘the Bill’). Introduced on November 21, 2016, the Bill brings in a strict restriction on any kind of commercialisation of surrogacy and aims to restrain people from attempting any illegal methods to surrogacy. This Bill was put forward by the Law Commission in its 228th Report on finding that the lack of legislation had led to the practice of surrogacy being misused leading to rampant commercial surrogacy and unethical practices.
Clause 2(f) of the Bill defines ‘commercial surrogacy’ as ‘commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother’.
The Bill makes provision only for altruistic surrogacy in Clause 2(b) which means ‘surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.’
The preconditions for surrogacy as stated in the Bill are as follows:
- The surrogate mother should be married and having a child of her own, and genetically related to the couple intending to have a child through surrogacy as per Clause 4(b)(II).
- The couple intending to have a child through surrogacy should be male and female as per Clause 2(g) of the Bill.
- Surrogacy services can be claimed only by legally married Indian couples who have been married for 5 years as per Clause 4(c)(II) and have medically proven issues as per Clause 2(p) of the Bill, stopping them from giving birth to a child and also do not have any other children Clause 4(c)(III) of their own or adopted or surrogate(unless the children are mentally challenged or suffering from terminally ill diseases).
- The couple intending for surrogacy should be between the age of 23-50 years and 26-55 years for female and male respectively as per Clause 4(c)(I).
- Only certified clinics abiding by the regulations in the Bill will be allowed to conduct surrogacy procedures as per Clause 10 of the Bill.
- A person can become the surrogate mother only once.
- An informed written consent must be obtained from the surrogate mother prior to the commencement of the surrogacy procedure.
- A child out of surrogacy cannot be terminated or abandoned by the intending parents in India or abroad as per Clause 7 of the Bill.
- No payment other than reasonable medical expenses can be made to the surrogate mother and the surrogate child will be deemed to be the biological child of the intending couple.
- Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother and will also regulate surrogacy clinics.
Clause 35 of the Bill prescribes punishment of imprisonment for a minimum term of ten years and with fine which may extend up to ten years in cases of undertaking commercial surrogacy, providing services in relation to that, running surrogacy agencies without legal registration, advertisement of commercial surrogacy services, exploitation of surrogate mothers, selling of human embryos, etc. The Bill also prescribes punishments for any uncertified medical practitioner, clinic or institution engaging in surrogacy practices.
The central and state governments will appoint one or more appropriate authorities comprises the Joint Director of the State Health Department, an officer of the state Law Department, a medical practitioner, and an eminent woman. Their functions include: (i) granting, suspending or canceling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; and (iii) investigating and taking action against complaints of breach of the Act. The appropriate authority
The central and state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively. Functions of these Boards include advising the government on surrogacy policy, supervising the functioning of SSBs, etc.
- The surrogate mother must be a ‘close relative’ of the intending couple as per the Bill which is unlike similar bills in other countries, but the Bill does not define the term ‘close relative’. Further, the surrogate mother being a close relative, donating her own egg for the pregnancy may lead to bad health implications for the surrogate baby. The current Indian Council for Medical Research (ICMR) guidelines (2005) do not allow the surrogate mother being a close relative to be an egg donor for the intending couple who have a surrogacy arrangement with her which proves the Bill inconsistent with the law. And also according to the World Health Organisation, when biological parents are related by blood, the prevalence of rare genetic congenital anomalies increases.
- The Clause 2(g) of the Bill allowing only a couple made of a male and female to opt for surrogacy is a step back from the SC decision to legalise same-sex relationships. Also, this seems inconsistent with Hindu adoption law where a single person can adopt.
- Commercial surrogacy in India is prevalent in India since 2002. The availability of medical infrastructure and potential surrogates, combined with international demand, has fueled the growth of the industry. The economic scale of surrogacy in India according to the study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India.
- Commercial surrogacy as of now is allowed only in Russia, Ukraine and California. Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the State.
- The bill furthers the orders adopted in the year 2015 brought in by the Government about a ban on use of Indian women for surrogacy by foreign nationals, after the 2 high profile cases came in to the Supreme Court regarding citizenship issues of a Japanese girl Manji and twins born to a German.
- The bill seems to be a beneficial legislation in so far as the surrogate mothers are concerned and the compliances required by the Act ensures that they are protected from being exploited. The bill envisages to impose stringent punishments on hospitals, clinics, organisations and intended couples who contravene with the provisions of the bill, it is pertinent to note that the offences under the bill are cognisable, non-bailable and non-compoundable.