Surrogacy (Regulation) Bill, 2019 GS: 2 "EMPOWER IAS"

In news:

• The Rajya Sabha Select Committee on Surrogacy (Regulation) Bill, 2019 has given its recommendation.

 

What is Surrogacy?

• Surrogacy is an arrangement, often whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for another person(s) who is or will become the parent(s) of the child.

 

 

Major changes suggested by the committee

• The surrogate mother need not be a “close relative”. The close relative provision in the bill was criticised as it restricts the availability of surrogate mothers and affects genuinely needy persons.
• Allowing single women (widow or a divorcee and Persons of Indian Origin) to avail of surrogacy.
• Permit divorced and widowed women between 35 and 45 years of age to be a single commissioning parent.
• Increasing insurance cover for the surrogate mother from the 16 months proposed in the Bill to 36 months.
• Deleting the definition of “infertility”: the definition of infertility in the bill was “the inability to conceive after five years of unprotected intercourse”. select committee recommended deleting the definition on grounds that it was too long a period for a couple to wait for a child.
• Protect the interests of the child: Committee recommended that the order regarding the parentage and custody of the child, issued by a Magistrate, shall be the birth affidavit for the surrogate child.
• Assisted Reproductive Technologies (Regulation) Bill (ART) should be taken up before the Surrogacy (Regulation) Bill. The ART Bill primarily deals with technical, scientific and medical aspects, including the storage of embryos, gametes, oocytes, etc. as contained in the Surrogacy Bill.

 

Key features of the Surrogacy (Regulation) Bill, 2019:

• Ban commercial surrogacy:  The Surrogacy (Regulation) Bill regulates altruistic surrogacy and prohibits commercial surrogacy.
• Define Surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child to them after the birth. 
• Altruistic surrogacy: The Bill allows altruistic surrogacy, which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother. 
• Define commercial surrogacy: Commercial surrogacy is prohibited under the Bill. This type of surrogacy includes a monetary benefit or reward (in cash or kind) that exceeds basic medical expenses and insurance for the surrogate mother.
• 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:

• Close relatives:  The couple intending to commission a surrogacy arrangement must be a close relative of the surrogate mother.
• Indian citizen:  the couple have to be Indian citizens who have been married for at least five years .
• Age: Couples  are in the age group of 23-50 years (female partner) and 26-55 years (male partner)
• Medical  certificate: secure a medical certificate stating that either or both partners are infertile. 
• No surviving child: The couple also should not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness, among other provisions.
• Eligibility criteria for 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.
• Eligibility criteria for intending couple: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.

• Biological child: The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.
• Appropriate authority: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.  The functions of the appropriate authority include; (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifications to the rules and regulations.
• Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.  Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
• National Surrogacy Board :  The Bill provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice and process of surrogacy.
• Offences and penalties: The offences under the Bill include: (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.

What is Altruistic surrogacy? It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the gestation period.  The shift to altruistic-only surrogacy was made in the context of reports about cases of surrogate babies being abandoned and exploited Problems of surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children. PIL in Jayashree Wad vs Union of India sought to end commercial surrogacy in India. Based on court judgement, the government declared that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy. There is a danger of exploitation and abuse in commercial surrogacy.   What is Commercial surrogacy? Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward. This reward can be in cash or kind, which exceeds the basic medical expenses and insurance coverage.

 

Significance of the Bill:

• Ban commercial surrogacy.
• Ending the exploitation of women who are lending their womb for surrogacy.
• Protecting the rights of children born through this.
• Protect the interests of the couple that opt for surrogacy, protecting them against exploitation by clinics that are carrying surrogacy as a business.
• India has emerged as a surrogacy hub for couples from other countries.
• It will help in ending the unethical practices , exploitation of surrogate mothers, rackets involving intermediaries importing human embryos and gametes.
• The 228th report of the Commission of India has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.

 

Criticism of the Bill

• Conflict with Fundamental Right: The Bill raises questions over the reproductive rights of a woman. The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, warranting interference of a fundamental right.
• Equality: Restricting limited, conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age does not appear to qualify the test of equality (article 14), or of being a reasonable classification, satisfying the objective sought to be achieved.
• Deprived single parents:  The bill deprives single parents, homosexuals of availing the bliss of parenthood through surrogacy
• Violates freedom of choice: Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens.
• Close relatives: the Bill lacks the definition of the ‘close relative’.
• No mention of NRIs: The Bill specifies that the intending couples should be married Indian couples. There is no mention of Non-Resident Indians working or studying abroad who may want to come back home to have a baby.
• Discriminatory in nature:The Bill leaves out a lot of people who might want to have a baby through surrogacy, including unmarried couples, homosexual couples and single men and women.
• No law related to reproductive technologies: There is a mention of regulation on ‘donor eggs’ in the Surrogacy Bill, however, there is no concrete law regulating assisted reproductive technologies.
• Exploitation of women: Due to the prevalence of clandestine ART clinic, it is hard to regulate commercial surrogacy, this accompanied by prohibited commercial surrogacy will further lead to the exploitation of women.
• Failure on many counts: It fails to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child.

 

Way ahead:

• Regulation of surrogacy must be preceded by law on Assisted Reproductive Technology (ART).
• Surrogacy should be made inclusive for all class of people irrespective of their sexuality
•  Rights of surrogate mother and child born must comprehensively be formulated.
• Issues like social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child should be addressed.

 

Conclusion:

• As India has emerged as a surrogacy hub for couples from different countries and there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes. The Bill will be helpful to protect the interest of couples and surrogate mothers also. The 228th report of the Law Commission of India has also recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting a suitable legislation.

 

Source)

https://www.thehindu.com/news/national/surrogate-mother-need-not-be-a-close-relative-rajya-sabha-committee-recommends/article30744022.ece