The Surrogacy (Regulation) Bill 2019: Why commercial surrogacy is Ban in India?

The Surrogacy (Regulation) Bill 2019: Why commercial surrogacy is Ban in India?

In 2016, a Surrogacy (Regulation) Bill was introduced and passed by Lok Sabha, the lower house of the Indian parliament, proposing to permit only heterosexual Indian couples married for at least five years with infertility problems to access altruistic or unpaid surrogacy and thereby further banning commercial surrogacy. The 2016 bill lapsed owing to the adjournment sine die of the parliament session. The bill was reintroduced and passed by the Lok Sabha in 2019. The bill would require to be passed by the Rajya Sabha, the upper house of the Indian parliament and presidential assent before it becomes an act and thereby a law. Source: Wikipedia

Earlier July 2019 the Union Cabinet gave its nod to the surrogacy regulation bill 2019. The bill that aims to prohibit commercial surrogacy was introduced in the Lok Sabha on the 15th of July. Commercial surrogacy practice is also known as rent a womb was legalized in India in the year 2002. In order to promote medical tourism and soon India became the hub of surrogacy. Driven by factors like low cost and the absence of a strict legislation commercial surrogacy became a booming business in the country. According to a 2012 study by the Confederation of Indian Industry the size of India surrogate motherhood industry was 2 billion dollars a year. A study backed by the United Nations also conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country. The unregulated business led to concerns over the rampant exploitation of surrogate mothers as well as their children. Prompting the need for legislation to regulate surrogacy in the country.  A bill to ban commercial surrogacy in India and permitting only related women to act as our boots to infertile couples has been introduced once again in the Lok Sabha. The bill was passed by the lower house in December 2018 but lapsed as it could not get the parliaments approval. 

Surrogacy regulation bill 2019 

  • Provides for the constitution of surrogacy boards at the national and state levels.
  • Intending couples should not abandon such a child under any condition. 
  • Only Indian couples who have been legally married for at least five years would be allowed to opt for surrogacy 
  • Seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple

The surrogacy regulation bill puts in place stricter guidelines for couples opting for surrogacy it prohibits commercial surrogacy and allows only ethical altruistic surrogacy that too only to an intending infertile Indian married couple between the age of 23 to 50 years and 26 to 55 years for female and male respectively.  The surrogacy regulation bill aims to regulate the practice of surrogacy in the country so as to prevent the exploitation of surrogate mothers and to protect the rights of children born through surrogacy. 

For surrogacy to be valid in the country the bill presents a number of conditions: 

  • Only Indian couples who have been legally married for at least five years would be allowed to opt for surrogacy
  • The bill seeks to allow only ethical artistic surrogacy to the intending infertile Indian.
  • The married couple between the age of 23 to 50 years for female and 26 to 55 years for men
  •  It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy.

Surrogacy Regulation Bill features ( 2019 )

  • The surrogate must be a close relative of the interning couple
  • Surrogate must be a married woman having a child of her own
  • She should be between the age of 25 to 35 years year of age.
  • She should not have been a surrogate earlier and must be certifiably mentally and physically
  •  A child born out of surrogacy to be the biological child of the intending couples
  •  The newborn child shall be entitled to all rights and privileges available to a natural child
  • Further, the bill also proposes the setting up of a national surrogacy board at the central level and state surrogacy boards and appropriate authorities in
  • The state and union territories to ensure effective regulation of surrogacy the bill also seeks to regulate 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.

 Once the bill is passed by both houses of parliament the government shall notify the date at the commencement of the act. Consequently, the National surrogacy board will be constituted the states and union territories shall constitute state surrogacy boards. After the enactment of the Act, only ethical surrogacy for needy couples will be allowed on fulfilment of stipulated conditions.

Surrogacy Regulation Bill 2019 ( Background ) – 

  • India emerged as a surrogacy hub for couples from other countries
  • There were multiple reports concerning unethical practices exploitation of surrogate mothers abandonment of children born out of surrogacy. Rackets involving intermediaries importing human embryos and gametes prompting the need for a stringent law on surrogacy
  •  The Law Commission of India also highlighted the need to enact such a law.

In its 228 reports, the Commission recommended prohibiting commercial surrogacy citing concerns over the prevalent use of surrogacy by foreigners and the lack of a proper legal framework resulting in the exploitation of surrogate mothers. who may have been coerced to become a surrogate due to poverty and lacked education.   When a woman agrees to gestate a baby for another couple or individual gestational surrogacy became popular in India due to advances in reproductive medicine a large pool of impoverished women and low cost compared to countries such as the United States Canada and Australia.  There are two kinds of surrogacy Gestational and traditional surrogacy. In Gestational the embryo that is fertilized by the in vitro method is implanted into the uterus of the surrogate mother. Who then carries and delivers the baby. In traditional surrogacy, the surrogate mother is impregnated with this form of the intended father artificially which makes her both the genetic and gestational mother. Surrogacy is commercial or altruistic depending upon whether the surrogate is paid money for her pregnancy. Due to the lack of proper legislation both surrogate mothers and intended parents are exploited. Only middlemen and commercial agencies profit from the arrangement. Lack of transparency further increases the risk of legal problems for the people involved. 

Problems of Surrogacy : 

  • For cross-border childless couples not only do they have to cope up with a language barrier but they sometimes have to fight long legal battles to get their children.
  • Even without legal problems, couples have to stay in India for two to three months to complete formalities after the baby is born.
  • Cross-border surrogacy also leads to problems in citizenship nationality motherhood parentage and rights of a child children are at times tonight nationality of the country of the intended parents.
  • There are also incidents when the child given to the couple after surrogacy is not, genetically related and in turn, is disowned by the intended parents and has to spend their life in an orphanage.

Ethical issue with Surrogate : 

  •  Poor illiterate women of rural background who are persuaded by their spouse or middlemen to enter such deals to earn easy money these women have no party decide about their own body and life
  •  In India, there is no psychological screening or lethal counselling that is mandatory in you after recruitment by the commercial agencies these women are shifted to hostels on the protects of taking antenatal care.

The real motive is to cart them and avoid the social stigma of being made outcasts by their community. These women end up spending the whole tenure of pregnancy worrying about the household and children. The worst part is that in the case of an unfavourable outcome of the pregnancy they are unlikely to be paid. There is no provision of insurance or post-pregnancy medical and psychiatric support for them. There are many moral and ethical issues regarding surrogacy that has become more of a commercial racket. The most unequal party in the Surrogacy contract, however, remains the child that results from AIDS.

Source: https://www.rmrcbbsr.gov.in/pdf/monday_report/E_CAS_4_3219082019.pdf
https://www.icmr.nic.in/sites/default/files/ICMR_IN_NEWS_3_23_Aug.pdf

Prenatal sex determination was banned in India in 1994, under the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act for Indian Citizen.