Lok Sabha has passed Surrogacy (Regulation) Bill 2016 to protect surrogacy in the country. The bill has banned commercial surrogacy and allows only altruistic surrogacy. The bill protects the rights of the surrogate mother and the child born
from surrogacy and promotes ethical surrogacy. Surrogacy is defined as an agreement between a couple who cannot conceive and a surrogate mother to carry their child.
Salient Features of Bill
- Regulate practices in ethical surrogacy in the country and prohibits commercial surrogacy including sale and purchase of human embryo and gametes.
- Calls for establishment National Surrogacy Board (NSB) at the central level and State Surrogacy Boards (SSB) and Appropriate Authorities in States/Union Territories.
- Allows ethical surrogacy for all infertile Indian married couple in the country.
- The bill is providing surrogacy to only Indian citizens. Thus, Foreigners, NRI and PIOs are not allowed.
- Protects rights of surrogate mother and children born out of surrogacy.
- The law will apply to whole of India, except the state of Jammu and Kashmir.
- All Assisted Reproductive Technology (ART) clinics will be registered.
- The bill states that the surrogate child will have equal rights like any other biological or adopted child over property.
- The bill provides that women can only surrogate once in her lifetime and her age should be in between 25 to 35 years.
- The surrogate mother, who should be married and have borne a healthy child, needs to be a close relative of the couple.
- The couple who intend for surrogacy should be aged between 23 to 50 years and married for at least 5 years.
- A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses. Also, only ‘close relatives’ can turn candidates for surrogacy, according to the proposal.
- Homosexuals and Single parents are also not allowed for surrogacy .
- Also, couples having a child already (biological or adopted) can’t approach a surrogate mother.
- Further, the bill has also a provision for jail term upto 10 years, and a fine of Rs 10 lakhs for violations, such as abandoning the child and opting for commercial surrogacy.
- Regulates the surrogacy services in the country.
- Ban unethical commercial surrogacy and also sale and purchase of human embryo and gametes.
- Allows ethical surrogacy to needy infertile couples on fulfilment of certain conditions.
- Control unethical practices in surrogacy, prevent commercialization of surrogacy.
- Prohibit potential exploitation of surrogate mothers and children born through surrogacy.
- India has emerged as a surrogacy hub for couples from different countries. However there have been reported incidents concerning unethical practices of surrogacy across country.
- Incidents such as exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human gametes and embryos were also reported.
- The 228th report of the Law Commission of India (LCI) also had recommended for banning commercial surrogacy by enacting a suitable legislation. However, it had allowed ethical altruistic surrogacy to the needy Indian citizens.
- Surrogacy in India is estimated to be a $2.3 billion industry but surrogate mothers are paid less than a tenth of what they get in US.
Why increase in India?
- Cutting edge technology
- Trained staff
- Availability of rented wombs
- Competitive pricing
- India hub of medical tourism
- Poverty, illiteracy and the lack of power that women have over their own bodies
Who will be barred as per the new bill?
- Couples already having one child.
- Overseas Citizens of India (OCI) card holders.
- Single people.
- Ethical guidelines
- Regulated environment
- Enhanced clinical practice
- Will not allow commercial surrogacy that involves exchange of money for anything apart from paying for medical expenses for the mother and the child –> Thus only altruistic surrogacy
- Prohibit and penalize commercial surrogacy services so as to protect the dignity of womanhood and to prevent trafficking in human beings and sale of surrogate child
- Only needy infertile Indian couples would be able to opt for surrogacy of altruistic kind
- Exclusion of LGBT, Single men or women, couples in live-in relation, as well as married couple who are proven to be fertile
- Governments stand is based on the ethical standard that a child should not be a product of transaction and that motherhood should not be commodified
- Insistence on surrogacy and not adoption is seen from the gender-rights perspective, as propagating the patriarchal bloodline
Why commercial surrogacy should not be allowed?
It allows anyone with the money to decide to have a child, order one and have it delivered. In the absence of regularisation, he or she could even disown ‘the product’ once it was ready
How such ban proved disastrous in Thailand?
Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed the dark side of this industry. However, the result was chaos. A number of surrogates in various stages of pregnancy were left in limbo. Intending parents did not know how to collect their babies. Consequently, the surrogacy industry got pushed underground.
Recommendation of a Parliamentary Standing Committee:
- More liberal norms that will allow live-in couples, divorced women, and widows to choose surrogates is the need of the hour
- It has recommended that couples should be allowed to choose surrogates from both within and outside the family
- The Panel also favoured the decision to debar foreigners from availing of surrogacy services in India
- Committee: The committee is a 31 member Parliamentary Committee on Health and Family Welfare
- Cabinet has approved some of these suggestions.
Criticism of the Surrogacy (Regulation) Bill, 2016 by the panel
- It criticized the exclusion of live-in partners from the ambit of the legislation
- According to the panel, the bill talks about compensation rather than altruism as the guiding principle of surrogacy, the panel finds this anti-women
Surrogacy in India has flourished into a ‘Commercial Industry‘ and lead to ‘reproductive tourism‘. Analyse both the positive and negative impacts this had on India. To what extent, the ART bill seeks to address the above concerns. (200 Words)
Assisted reproductive technology (ART) where embryo is implanted and grown in rented womb of surrogate mother is surrogacy
Reasons for commercialization of surrogacy in India:
- Lack of regulating frame work
- Cheap but confident medical techniques and services
- Availability of poor women who are willing to rent their wombs.
Above factors in turn led to “reproductive tourism” into India which has been a mixed bag of results for India.
- Tourism- forex to the government
- Surrogate mothers will be benefited as they get some kind of livelihood.
- Problem couples can get children at lower costs.
- Middle men emerged claiming lot of commissions. Hence the poor surrogate women are getting low returns. Their rights are being violated. They are not allowed to meet their husbands throughout the gestational period.
- Sex selective illegal techniques.
- Lack of regulation led to questions over citizenship of child.
New ART is legalizing surrogacy. It is mandating medical visa and marriage stipulation to parents and also an acknowledgement from concerned national government that allows the couple to undergo this process in India. It also mandates a notary contract between surrogate mother and biological parents but problems with regards to right to abortion in case of emergency and issue of middle men are not dealt effectively.
Government has recently banned foreigners from having children through surrogate mothers in India. The government expressed its reluctance to allow commercial surrogacy, while supporting altruistic surrogacy for married infertile Indian couples. Examine the effects of this ban on the people involved in commercial surrogacy. (200 Words)
Under Assisted reproductive Technology legislation the union government tried to switch surrogacy from a commercial practice to an altruistic help to who are genuinely looking for it. Following would be the impacts
- It will protect and promote the dignity of motherhood which has a very sacrosanct status in Indian ethos and culture.
- End the plight of the mother who has forcefully go far repeated pregnancies and surgeries.
- The fate of child disowned by client parents in case of some discrepancies.
- The exploiting middleman who are earning major chunk of money.
- To optimize the population which already is very high.
- Loss of revenue of government via medical tourism.
- The source of income from a large section of illiterate women who could provide a better future to their children.
- The practice of illegal/secret surrogacy will increase the cost and make the women more vulnerable to exploitation by the police and other government agencies that in turn will increase the corruption and litigation.
- To get pregnant or not should be the discretion of a mother and it should not be intervened by government in a democracy. It may project a conservative and anti- liberal image of India.
So nothing wrong in banning the surrogacy while providing a window for needy ones, on ethical ground but the alternative skills and means of livelihood should we arranged sincerely.