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Tahmina Naz: Critical Analysis Of The Surrogacy Bill

“We don’t want surrogacy to be the first choice for people who want kids. Why should an adopted child be treated as a second class citizen?”

Dr. Soumya Swami Nathan (Key architect of draft surrogacy bill)

Surrogacy occurs when women agree to gestate a baby for another couple or individual. Surrogacy is often commercial or altruistic depending upon whether the surrogate is paid money for the pregnancy. This concept is very used because it allows childless couples or single persons to become parents. The world’s second and India’s first IVF baby Kanupriya was born in Kolkata on October 3, 1978. The Surrogacy (Regulation) Bill, 2019 has been introduced in the Lok Sabha. The Bill aims to prohibit commercial surrogacy in India.

Commercial surrogacy is a practice also known as ‘Rent a  Womb’ was legalized in India in the year 2002 and soon India became the hub of surrogacy because of the factors such as low cost and the absence of strict legislation, commercial surrogacy became a booming business in the country. The cost of surrogacy in India is around 1/3rd of that in developed countries. The 2012 study by the United Nations estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with quite 3,000 fertility clinics across the country. The unregulated business of surrogacy led to the rampant exploitation of surrogate mothers as well as their children. This promoted the need for legislation to regulate surrogacy in the country.

The Law Commission of India also highlighted the necessity to enact the surrogacy bill. In its 208th report, the commission recommended prohibiting commercial surrogacy citing concerns over the prevalent use of surrogacy by foreigners and the lack of proper legal framework resulting in exploitation of the surrogate mother who may have been coerced to become a surrogate due to poverty and lack of education. In recent years, India has emerged as a surrogacy hub for couples from other countries. There were multiple reports concerning unethical practices, exploitation of surrogate mothers and abandonment of children born out of surrogacy. The rackets involving intermediaries importing human embryos and gametes prompting the requirement for a stringent law on surrogacy.

The surrogates generally turn out to be poor illiterate women of rural background who are persuaded by their spouse or middlemen to enter such deals to earn easy money. After recruitment by the commercial agencies, these women are shifted to hostels on the pretext of taking prenatal care. The real motive is to avoid the stigma of society. These women end up spending the whole tenure of pregnancy worrying about their own children and household. The worst part is that they are unlikely to be paid and there is no provision of insurance or post-pregnancy medical and psychiatric support for them. Due to the lack of proper legislation, sometimes both surrogate mothers and intended parents are exploited. Only middlemen and commercial agencies get profited. There also incidents, when the child was given to the couple after surrogacy is not genetically related to the couple and in turn, the child is disowned by the intended parent and the child, has to spend his/her life in an orphanage. The Union Cabinet has approved the Surrogacy (Regulation) Bill, 2020. The cabinet incorporated all the recommendations of the Rajya Sabha Select Committee before approving the Bill. The latest Bill is a reformed version of the draft legislation, which was passed by the Lok Sabha in August 2019. The 2019 Bill was referred to the select committee. These were the recommendation made by the committee. It was recommended that a surrogate mother need not be a “close relative”. Requiring the surrogate mother to be a “close relative” potentially restricts the availability of surrogate mothers, affecting people in genuine need. Single women (widow or a divorcee) should be allowed to avail of surrogacy. The insurance cover for a surrogate mother should be increased to 36 months from 16 months.

The features of the Surrogacy (Regulation) Bill,2019 are as follows. The bill is applicable to all Indian couples. The bill provides for the making of surrogacy boards at the national as well as at the state levels to ensure effective regulation. It seeks to permit ethical altruistic surrogacy to the intending infertile Indian marriage between the age of 23-50 years for female and 26-55 years for a male. Only Indian couples who are legally married for a minimum of 5 years would be allowed to choose surrogacy. It makes it mandatory for the couple to get a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy. It also provides that intending couples shouldn’t abandon the kid born out of surrogacy under any condition. It also stipulates a separate eligibility criterion for the surrogate mother. The surrogate must be a close relative of the intending couple and should be a married woman having a child of her own. She should be between the age of 25 to 35 years, not have been surrogate earlier and must be certifiably mentally and physically fit. On the status of a surrogate child, the Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple. The newborn child shall be entitled to all or any rights and privileges that are available to a natural child. The Bill also seeks to manage the functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures. The Bill provides for various safeguards for surrogate mothers. One of them is coverage for some time to hide not only the amount of pregnancy but then also. It also specifies that no sex selection is often done when it involves surrogacy. The Bill further clarifies that any sort of advertisement about the act of surrogacy may be a punishable criminal offence.

For cross border childless couples, not only do they have to cope up with the language barrier, they sometimes have to fight long legal battles to get their children. Cross border surrogacy also leads to problems in citizenship, nationality, motherhood, parenting and rights of a child. Children are at times denied nationality of the country of the intended parents. Lack of international law on surrogacy creates complications for surrogates as well as intending parents.

There is a various way forward to be taken for surrogacy to happen. Rather than penalizing surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks. Right to privacy of donor as well as surrogate mother should be protected. Surrogacy should be made inclusive for all class of people irrespective of their sexuality. The Surrogacy (Regulation) Bill 2019, bans only on the commercial surrogacy, but it fails to effectively tackle the larger social, physical, psychological, emotional and economic issues. That continues to challenge the welfare and safety of both the surrogate mother and the child. The removal of the commercial aspects in the current surrogacy arrangements does not remove the chances of exploitation. So the rights of surrogate mother and child born must comprehensively be formulated.

# Critical Analysis Of The Surrogacy Bill Critical Analysis Of The Surrogacy Bill

Critical Analysis Of The Surrogacy Bill

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