This article is written by Mansi Vyas of University Five Year Law College, UOR, Jaipur and curated by Naman Jain of Bennett University, Greater Noida.
What is Surrogacy?
Surrogacy is a practice where one woman agrees to bear a child for another parent(s) and gives the child to the intended parent(s) after its birth.
As far as this article is concerned, there are two types of surrogacy:
- a) Altruistic surrogacy- It is the type of surrogacy in which the surrogate mother (one who bears the child) is not given monetary benefits except for the costs related to pregnancy and insurance for a reasonable period.
- b) Commercial surrogacy- 1. It is the type of surrogacy where the surrogate mother is given the above allowances and is compensated for carrying out the whole process.
- It is the way of trading the human embryo or trading surrogate motherhood.
Timeline of surrogacy in India
2005: 2002 draft of the National Guidelines for the Accreditation was approved.
2007: Supervision and Regulation of ART Clinics in India were approved.
India, because of its cheap facilities and availability of resources, became internationally famous.
2013: Surrogacy by foreign homosexuals (homosexuality in India was not then considered), and single parents were banned.
2015: Commercial surrogacy was banned in India.
2016: Surrogacy (Regulation) Bill was introduced and passed by Lok Sabha. It was later lapsed because of adjournment sine die in parliament.
2019: The bill was reintroduced and passed by Lok Sabha.
2020: Reformed version of the bill is approved by the Union Cabinet.
Key features of Surrogacy (Regulation) Bill 2016:
- Commercial surrogacy banned; only altruistic surrogacy was made legal.
- Qualification of intended parents:
- A heterogeneous couple married for at least 5 years.
- Wife’s age should be 23-50 years. Husband’s age should be 26-50 years.
- They should not have a former biological, adopted, or surrogate child. Physically or mentally challenged children as well as the ones with fatal diseases are exception to such case.
- They should have certificate of essentiality and certificate of eligibility from appropriate authority (such authority will be appointed by the central and the state government).
- Qualification of a surrogate mother.
- Close relative of the intended parents.
- She should be 25-35 years old.
- She should have at least one biological child of her own.
- She should have never been a surrogate mother before.
- She should be physically and psychologically healthy for the process.
- Clinics must be registered under this Act to perform surrogacy.
- Surrogacy cannot be performed in any place except the registered clinics.
- All medical costs incurred during the process of pregnancy shall be paid by the intended parents. Also, the parents must provide an insurance covering 16 months to the surrogate mother.
- The child born should have the rights as same as naturally born child of the intended parents.
Changes in the reformed Bill:
- Not only heterogeneous married couples, but also, widows and divorced women can have a surrogate child.
- The age of the widow and divorced women must be 35-45 years.
- The surrogate mother need not to be a “close” relative of the intended parents. She can be any “willing” women.
- Period of insurance provided to surrogate mother is increased from 16 months to 36 months.
- Regulation of surrogacy by-
- National Surrogacy Board at central level,
- State Surrogacy Board at state level, and
- Appropriate Authority in Union Territories.
Suggestions to improve the Bill
- After decriminalizing Section 377 of IPC, the government wiped its hand off the main job. One of all the things that are left undone is- giving them their rights to have a surrogate child. The provision of allowing only a “heterogeneous” couple to have a surrogate child should be struck off.
- The period of marriage for an eligible couple should be reduced to a reasonable period because five years is, in all respects, an extended period for people who are eagerly waiting to be parents.
- The provision of allowing only divorced women and widows should be updated. The right to have a surrogate child should also be given to single women and single men (regardless of the fact that they are divorced or not, or that their ex-spouse is dead or not).
Also, the eligible age of being a single parent should be lessened to a sensible age.
- The negativity with commercial surrogacy should be tossed out. The idea of compensating women forbearing one’s child is in no way unethical. It is just a practical approach to things. The fact that now any “willing” women can be surrogate mothers shows that having only “close” relatives to do the job does not work. At present, if a close relative cannot be a surrogate mother, then why would any other woman bear a child without getting paid for it. No one can deny the fact that such payment helps the needy women. The step of jettisoning the payment part makes the whole process harder. (For this point, commercial surrogacy refers to the first part of the above-given definition)
- Infidelity should not be a necessary criterion for bringing eligible to be an intended parent. There can be people who are not sterile, but for whatsoever reasons, they do not want to have a child “naturally.”
- India has a robust population of 138 crores as of now, why contribute to it?
- As per data of 2019, 8677 children (plus hundreds of children who are not added in the data) are available for adoption, and yet people go for surrogacy. India needs to understand that “Genes do not define family; it is built and maintained by love.” If there are already so many pure souls yearning for parents, then why should not one make them the priority?
There should be a provision for the promotion of adoption in front of every parent who decides for surrogacy. People must know their options, and they must also know how beautifully they will contribute to the world by considering adoption.
Not having a child when one is aching to have one is undoubtedly a painful situation. Science has made sure to do its part by giving such people the gift of surrogacy; the law needs to complement it too. The new Bill is undoubtedly better than the previous one, but it still needs much updating. India should stop being an orthodox country with unjust beliefs. It is time to shape our laws in a just manner by keeping into consideration every citizen, regardless of her/his marital status, sex, gender, and sexuality.