Critical Analysis Of Surrogacy Bill, 2019

Surrogacy is an arrangement, often whereby a woman (the surrogate mother) agrees to become pregnant and give birth to a child for someone else who is or will become the child’s parent(s). Intended parents use surrogacy to start their family when they can’t do so on their own. An ever-increasing prevalence of infertility globally has contributed to the advent of assisted reproductive techniques (ART). Here, Surrogacy has emerged as an alternative if the infertile woman or couple cannot reproduce.

In 2014, an Indian woman decided to become a surrogate mother to get monetary benefits and in the hope that payment would help her start a new business. She delivered a baby for the intended parents but her hopes bore little fruit for herself. She got a little amount of money what she was promised to be paid. She found out that 50% of the amount was given to a middleman. This incident resulted in several Public Interest Litigations in the Supreme Court to control commercial surrogacy and incidents like this highlight the need for an effective bill which can control and regulate the practice.

Surrogacy became a practice in India and women started seeing it for their gains. This arrangement of surrogacy appears to be beneficial for both the parties as the intended parents get a child and the surrogate mother get monetary benefits. At first, it seems like an attractive proposition where a poor surrogate mother gets what she needs and an infertile couple gets their long-desired baby. But apart from benefits, we should not lose sight of what is being done in the name of surrogacy. Surrogacy started getting misused as surrogate mothers started threatening the intended parents and ask for monetary compensation. Also due to non-transparency and lack of legal regulations, both, the surrogate mother and the intended parents could be exploited by the middlemen or a commercial agency.

The need of the Hour

The need for the surrogacy bill came after India emerged as a surrogacy hub for couples and the increasing number of incidents reported on unethical practices. What was started for convenience has now become a luxury? It was highly misused even by the top elites in the country who are very well educated. There was a dire need to come up with a bill that could in some way be a positive side. To protect the rights of the intended parents and the surrogate mother, commercial surrogacy is now banned in India after a surrogacy bill passed in 2016. It aims to regulate the practice of surrogacy in the country, prevent exploitation of surrogate mother and protect the rights of children born of surrogacy.

Commercial surrogacy is also known as “Rent a womb” was legalized in 2001 to increase medical tourism in India. Due to the absence of strict regulations, it slowly became a reverberating business in India. India had been a favourite place of fertility tourism before the bill passed. Unethical practices, exploitation and greed over needled the government to take stringent actions. The bill aims to ensure better health and wellbeing of the surrogate mother by banning the commercial surrogacy, bringing an altruistic surrogacy model and mandating the women to surrogate only once in her lifetime. Altruistic surrogacy is an arrangement where a surrogate mother does not get any monetary compensation beyond reimbursement of medical and other reasonable expenses. The bill also proposes the mandatory registration of “surrogacy clinics” for those who are conducting the procedure in any form. (news 18, n.d.) The purpose of the bill is to tackle the unethical practice and to prevent rackets. The bill, however, does not ensure the effective ethical surrogacy as there are some clauses which make the bill debatable. No doubt the bill offers something which can be helpful for many like a penalty for offences such as undertaking commercial surrogacy, and punishment for exploiting surrogate mother. Clauses like these in a true sense give confidence to the intended parents and they can easily opt for surrogacy according to the guidelines.

BOON or BANE

I think the bill has several potential blind spots; it makes surrogacy an issue of moral and ethics when it is not. The bill only allows a “close relative” of the intending parents to be surrogate which in my opinion could be cumbersome for the infertile couples to go for surrogacy. Or if we look at the other aspect, the clause “close relative” could lead to coercion and exploitation of women in some families.

Activists and experts have argued that the bill prevents same-sex couple to opt for surrogacy which violates article 14 of the constitution. It further appears to be in derogation to article 21 of the constitution.

Furthermore, it is provided that only an Indian couple, who is legally married for at least 5 years can opt for surrogacy. It makes them wait for at least five years to opt for surrogacy. Five year time is too long for a married couple to be allowed to have surrogacy. In addition to this, a surrogate mother needs to be- a married women, should have a child of her own, should be 25 to 35 years old, surrogate only once in a lifetime, should have a medical certificate. A couple who is not married cannot avail surrogacy which means live-in couples, and widows cannot avail surrogacy and are left out. If the law presumes that live-ins are valid then how can a bill say such couples cannot avail surrogacy?

Conclusion

Therefore, in my opinion, surrogacy should be reserved solely on the woman’s discretion. The law should not encroach on that freedom. The bill excludes certain people to avail surrogacy such as same-sex couples, live-in couples, widows and divorcees which I thought is a gross violation of human rights. It is simply a denial of justice for sexual minorities in India. It is a need of the hour for the authorities to overlook the bill and bring out the amendments which would be beneficial and justifiable to all. 

(n.d.). Retrieved from news 18: https://www.news18.com/news/india/what-is-the-surrogacy-bill-and-what-happens-if-it-is-passed-2395019.html

(n.d.). Retrieved from worldwidesurrogacy: https://info.worldwidesurrogacy.org/blog/commercial-surrogacy-vs.-altruistic-surrogacy.

Satyam Batra from Institute of law, Nirma University

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