June 27, 2020

Draft Surrogacy (Regulation) Bill, 2016: A legal view whether it is rhetoric in nature

This article has been written by Barkha, from JEMTEC School of Law.

Reproduction is important for, life to continue on earth. Every living organism is made in a way so that it can reproduce and, proceed his/her generation further. If there was no process of reproduction there would have been end of life on the planet. But with this basic process of reproduction, a society emerged with civilisation. In earlier times, it was believed that the only reason behind getting married it to give birth to children and create a new generation in order to continue human existence on earth. This need of reproduction has eventually led us to population explosion but people’s desire to have children is still continued.Almost every human being is obsessed with producing their progeny, to develop their next generation. It is said that children bring happiness to the life of the parents and the family. And in order to fulfil this desire, people try everything they can.

In this modern world, role of technology in daily lives of people is at peak. With each day passing by, technology is becoming more and more advanced. With the help of technology,any couple who is unable to produce children can continue their genes. These technologies are referred as ART (Assisted Reproductive Technologies), these technologies include, test tube babies, in-vitro fertilisation, in-vivo fertilisation, intracytoplasmic sperm injection, freezing of eggs and many more.[1] One of those technologies is surrogacy. The process of surrogacy is used when any female who is unable to produce eggs, or her womb is unable to bear the baby. This technique is sometimes supported by a legal agreement, where any fertile and competent female called as surrogate mother, agrees with infertile couple to bear their baby in her womb and return to her after the birth of the child.In this process, egg and sperm is taken from the intending parents and they are fused in the lab and then the embryo is implantedin the womb of the surrogate mother.[2] In the completion of this process, surrogate mother has to go through lot of artificial hormone injections, many hormonal changes which are not natural. This technique can somewhere lead to the exploitation of the surrogate mother. This exploitation can be physically and emotionally. These artificial hormone changes cause a lot of bad effects on a human body and many health issues. As it is quite obvious, some unnatural functions which are forced on any human body, can prove to be harmful.

This technology was created to reduce the suffering of infertile couples and give them blessing of children but somehow it turned out to be a business. Situations like poverty, unemployment, and education of children compel women to be surrogate mothers.[3]Sometimes, children born through surrogacy are abandoned. A similar case was arrived in India, Baby Manji Yamada V. Union Of India &Anr on 29 September, 2008[4], in this case a doctor arranged facility of surrogacy for a Japanese couple who was infertile, Ikufumi and Yuki Yamada, to have baby by surrogate motherPritiben Mehta. Whole procedure was done in the lab, in the process eggs of Pritiben Mehta were used. During the pregnancy phase, the couple filed for divorce. Any of the Indian law did not cover, who was the legal mother of the new born baby, Pritiben or Yuki Amanda. Although, baby was later given to her grandmother Emiko. From this case, it is evident that surrogacy can lead to easy abandonment of children.[5]These can lead to the rise of social evil like physical exploitation of surrogate mother for money, abandonment of children, child trafficking, and supply of girlsborn through surrogacy for prostitution.

To stop all these evils, there is requirement of framing and proper regulation ofstrict laws. There should be proper guidelines to use such techniques. In order to make strict laws regarding surrogacy, government of India introduced Surrogacy (Regulation) Bill, 2016. In this Bill, so many laws and guidelines were issued. The Bill contained 51 sections which gave brief explanationregarding, regulation of surrogacy clinics, regulation of surrogacy and surrogacy procedure, registration of surrogacy clinics, constitution of National Surrogacy Board, appointment of appropriate authority, offences and penalties, and other laws. The main features of this Surrogacy (Regulation) Bill ,2016 are:

It allows only altruistic surrogacy i.e. it bans commercial surrogacy. Giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind other than medical expenses and insurance coverage for surrogate mother is prohibited.[6]
The intending couple should be legally married for at least 5 years and should be Indian citizen[7], which clearly shows that surrogacy for foreigners is not allowed. The age for the intending couple should be between 23-50 in case of mother and 26- 55 in case of father.[8] The couple must not have any surviving child, biologically or adopted or through surrogacy[9] except when the child is mentally or physically challenged, or suffering with disease with no permanent cure.
Intending couple, must be medically certified biologically infertile.[10]
Surrogate mother must be the close relative of the intending couple, she should be between age of 25-35, married woman having child of her own, and she can opt to be surrogate mother only for once in a lifetime.[11]
The intending couple shall not abandon the child, born out of surrogacy procedure under any condition.[12]
Child born out of surrogacy procedureshall have same right as that of biological child, or adopted child.[13]
An insurance coverage of reasonable amount shall be ensured for surrogate mother.[14]
National surrogacy board shall be established and must function in accordance with the given act.[15]
All surrogacy clinics shall be registered under this act after approval by the appropriate authority i.e. National Surrogacy Board.[16]
All surrogacy clinics shall keep record of at least 25 years.[17]

These were some major features of the Bill. It was introduced to make more strict laws, related to surrogacy, to stop exploitation of women (surrogate mother) and children born out of surrogacy.

But this Bill somehow failed to mention appropriate laws for everyone, as it has been mentioned legally married Indian couple. Laws for LGBTQ community and for live-in couples are absent.[18]There is no option to have baby with the help of surrogacy for gays, lesbians, single parent, foreigners, and couples with children. In this aspect, this Bill failed to be flexible and modern. Due to such strictness of laws, single parents would not be able to proceed their genes to next generation. All married couple who are unable to conceive would have to wait for at least 5 years to go for surrogacy. As to be declared as biologically infertile, there should be unprotected mating for at least five years. It would take lot of time and suffering to the couples who are actually needy. In the Bill, it has also been mentioned that, only close relative of intending couple can opt to be surrogate mother, this clause makes this law ambiguous, as it has not been mentioned that what is the definition of close relative, who would be considered as close relative. Moreover, it would be difficult for couples to get consent of any married relative to be surrogate mother. It could be difficult for intending couple to fulfil all the conditions mentioned in the Bill.This law limits the possibility to give birth to a new life.

This Bill has been framed keeping in consideration, all the social issues. Although, couples can go for adoption of orphans. And even population explosion is at its boom, which is actually leading to unemployment, poverty and other issues. Because of this technology, women are allowing to get their bodies exploited, for some money. Keeping all the factors in mind, it was crucial to frame such strict laws related to surrogacy. But in this modern and progressive world, where everything is becoming liberal and more modern with time. There is requirement of laws which are flexible enough to meet the demands of modern society. Allowing only married couple to have the facility of surrogacy is not a move towards being a modern but an orthodox move. Access to this facility should also be allowed to live-in couples, LGBTQ community and single parents as well. This Bill can also lead to exploitation of some couples, who are already suffering in process of getting certificate and other requirements for the same. The couples would also have to wait for 5 years to get the benefit of this technology. Many laws mentioned in this Bill were required to have control over the issues. But there are many laws which can be proved to be rhetoric in nature. This Bill could be improved by providing more flexible rules keeping in mind other communities and requirement of this modern world.

[1]https://www.cdc.gov/(13^th, May, 2020, 19:24).

[2]https://www.hrc.org/(13^th, May, 2020, 19:19).

[3]Dr. Ranjana Kumari, Surrogate motherhood- ethical or commercial, 54

[4]Writ Petition (c) no. 369 of 2008.

[5]https://feminisminindia.com/ (12^th, May, 2020, 13:30).

[6] Sec. 4(b), Surrogacy (Regulation) Bill, 2016.

[7] Sec. 4 (iii)(c)(II),Surrogacy (Regulation) Bill, 2016.

[8] Sec. 4 (iii)(c)(I),Surrogacy (Regulation) Bill, 2016.

[9] Sec 4 (iii)(c)(III),Surrogacy (Regulation) Bill, 2016.

[10] Sec (3)(b), Surrogacy (Regulation) Bill, 2016.

[11] Sec 3(e), Surrogacy (Regulation) Bill, 2016.

[12] Section 7, Surrogacy (Regulation) Bill, 2016.