The Surrogacy (Regulation) Bill, 2019

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TOPIC:

General Studies 1: 

• Social empowerment

General Studies 2

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

• Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources

In News: The Surrogacy (Regulation) Bill 2019 seeks to ban commercial surrogacy and contravention of the bill can invite imprisonment up to 10 years and fine up to Rs 10 lakh.

The bill was passed by the 17th Lok Sabha by a voice vote in the Budget Session and moved for consideration to the Upper House by Health Minister Harsh Vardhan on November 19.

The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.  Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.  Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: 

(i) for intending couples who suffer from proven infertility; 

(ii) altruistic; 

(iii) not for commercial purposes; 

(iv) not for producing children for sale, prostitution or other forms of exploitation; and 

(v) for any condition or disease specified through regulations

Eligibility criteria for intending couple: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. Also, only legally married heterosexual couples can opt for surrogacy. Now this excludes single persons, divorcees, live-in couples, widows and widowers, gay couples among others.

Who can be a surrogate mother? – To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be: 

(i) a close relative of the intending couple; 

(ii) a married woman having a child of her own; 

(iii) 25 to 35 years old; 

(iv) a surrogate only once in her lifetime; and 

(v) possess a certificate of medical and psychological fitness for surrogacy

Further, the surrogate mother cannot provide her own gametes for surrogacy.

What is considered as an offence under the Bill?

(i) Undertaking or advertising commercial surrogacy; 

(ii) Exploiting the surrogate mother; 

(iii) Abandoning, exploiting or disowning a surrogate child; and 

(iv) Selling or importing human embryo or gametes for surrogacy.  

The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

Why the Bill?

The Bill explains that lack of legislation on surrogacy has led to its rampant commercialisation, unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gamets. In line with the recommendations of the Law Commission of India, it proposes to address these issues and protect the rights of surrogate mother and child.

Some women can get pressured to ‘lend’ their wombs by husbands and in-laws who are happy that there is no sex involved, and don’t really care about the emotional, medical and physical repercussions on the woman acting as surrogate. There is a lot of money to be made here, way more than prostitution and with no fear of social ostracism.

The shift to altruistic-only surrogacy was made in the context of sensational news reports about cases of surrogate babies being abandoned and exploited — surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children.

BUT

Parliamentary panel’s unaddressed concerns

Apart from stressing on the need to first regulate ART clinics, the 2017 Parliamentary panel, attached to the Rajya Sabha, had proposed several significant changes which the 2019 Bill ignores. Therefore, the need to send the Bill again to the same panel is unclear.

The changes the panel had recommended included defining ‘close relative’, redefining ‘infertility’, removing restrictions on surrogacy to ‘altruistic’ purpose alone, reversing the burden of proof on the accused, removing the need for written permission for abortion and specifying review and appeal procedures etc.

The panel objected to limiting surrogate to a ‘close relative’ and making it ‘altruistic’ saying that these would lead to coercion and further exploitation of women due to family pressure, given the social, legal, emotional and ethical dynamics involved.

It said limiting to ‘close relative’ (which has not been defined) would not only cause acute dearth and unavailability of women but also had no connection with the objective of stopping the exploitation of surrogates and therefore, both related and unrelated women should be permitted.

It questioned limiting eligibility for surrogacy in the definition of ‘infertility’ to those unable to conceive for ‘five years’, with a provision to add eligibility conditions on some future date, while the WHO and the ART Bill of 2014 proposed a period of ‘one year’.

Such limitation would not only impair chances of parenthood to many, as people get married late these days with their biological clock ticking, but also violate their reproductive rights, the panel said. It proposed a one-year period, which should be waived off for medical reasons.

The panel also objected to limiting surrogacy to only legally married couples and requiring them to be certified as infertile. Calling the certification unnecessary, it said restricting it to legally married couple amounted to imposing prohibition on widows, divorced women, live-in partners, which was not fair given the stigma attached to infertile women.

It demanded to know the rationale behind the denial of compensation to a surrogate mother, who would undergo hardships for nine months and beyond, while doctors, hospitals and lawyers involved in the process would get paid for theirs.

Besides, it suggested that impoverished women should be allowed for paid surrogacy to provide for her family needs.

The panel’s other objections and suggestions which have been ignored are: definition of surrogacy should be precise, explicit and descriptive with no scope for misinterpretation, removal of restrictions on donating gamete, removal of written permission for abortion without setting a time limit for it – the rationale for which wasn’t clear since the Medical Termination of Pregnancy Act of 1971 already provided for it and time was of essence in abortion – and providing safeguards against huge discretionary powers to the District Medical Board for issuing essential certificates.

Criticisms

There is undoubtedly a danger of exploitation and abuse in commercial surrogacy. The cases that have come up establish that possibility. But formulating a law on the basis of exceptions is ultimately counterproductive. 

Question of Bargaining Power: Exploitation takes place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. This can be addressed by a strong regulatory mechanism that introduces transparency and mandates fair work and pay for the surrogate mothers. Viewing commercial surrogacy as inherently exploitative and banning it only expands the potential for exploitation as it would force the business underground.

Stigmatises the choice: Further, criminalisation of commercial surrogacy is a refusal by the state to actually consider the exercise of agency that leads a woman to become a surrogate mother. Interviews with women who chose to provide gestational services for a fee have shown that it is a well-considered decision made in constrained economic conditions. A ban on commercial surrogacy stigmatises this choice and reinforces the notion of the vulnerable “poor” woman who does not understand the consequences of her decisions and needs the protection of a paternalistic State.

Relative or Patriarchy? As per the Bill, the surrogate mother must be a “close relative” of the couple. This is premised on the mistaken belief that exploitation and vulnerability do not exist within the family. Knowing the reality of patriarchal families in India, the stigma of infertility, the pressure of producing children to maintain lineage and the low bargaining power of women, it can be expected that young mothers will be coerced into becoming surrogates for their relatives. The Bill moves the site of exploitation into the private and opaque sphere of the home and family.

Notion of ‘motherhood’ in Indian society: The severance of commerce from pregnancy is also tied in to the notion of motherhood being something natural, sacrosanct and above considerations. To be paid for the reproductive labour evokes unease and claims of “dehumanisation” and “commodification” in certain opponents of commercial surrogacy.

Just a baby-producing machine? The Bill mandates the commissioning couple to only pay for the medical expenses and an insurance cover of sixteen months for the surrogate mother. The Standing Committee had recommended a model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care.

Connecting the Dots:

1. Explain the technology that is employed in surrogacy. What are the issues involved with respect to surrogacy? Examine.