This post is written by Megha Jain, a student of Hidayatullah National Law University, Raipiur.
WHAT IS SURROGACY?
Surrogacy is a procedure, where a women bears a child of and for another person (often biological father and mother), who become the parents of the child. It is often a legal arrangement. The women bearing the child is called ‘surrogate’.
Commercial surrogacy is when the women is paid by the intending parents in exchange of bearing the child (or children) till maturity. It also includes commercialization of surrogacy activities and alike procedures.
In India, the Surrogacy (Regulation) Bill was passed by the parliament on approval of the union Cabinet. The bill was introduced and passed by the Lok Sabha on 2019. But, with 15 major changes suggested by the 23-member committee to the Surrogacy (Regulation) Bill, 2019, it was finally passed by both the houses on 26 February 2020.
PURPOSE OF THE BILL
Speaking on the Bill, Dr. Vardhan said: “The Bill is aimed at ending the exploitation of women who are lending their womb for surrogacy, and protecting the rights of children born through this. The Bill will also look after the interests of the couple that opt for surrogacy, ensuring that there are laws protecting them against exploitation by clinics that are carrying this out as a business.”
ANALYSIS OF THE BILL
INTENDING COUPLE ELIGIBILITY
Section 4(iii)(a) of the Bill states that eligibility criteria for the intending couple has been established under the bill for them to undergo surrogacy. The couple needs to gather a ‘certificate of essentiality’ and a ‘certificate of eligibility’.
Certificate of essentiality is obtained by the intending couple on the fulfilment of certain conditions:
Certificate of proven infertility of the couple issued by District Medical Board.
Custody of the child passed to the couple by Magistrate Court.
16 months of insurance to maintain the surrogate mother for her medical expenses which include healing procedures.
Certificate of eligibility is issued on the fulfillment of other set of requirements:
The couple is to be of Indian nationality.
The couple is to be married for at least 5 years.
The wife should be between 23 to 50 years and the husband should be between 26 to 55 years.
The couple does not have any other surviving child through adoption, surrogacy or biologically unless the child is mentally or physically challenged. Any child suffering from any life threatening disorder or disease is excluded from this condition.
SURROGATE MOTHER ELIGIBILITY
Section 4(iii)(b) of the Bill states that certification of eligibility by appropriate authority is required by the surrogate mother under fulfilment of the following conditions placed by the bill:
The surrogate has to be a close relative of the couple;
The surrogate mother must be a married woman who has a child of her own;
The woman shall be 25 to 35 years old;
Only once in a lifetime a woman can be a surrogate;
Certificate of physical and psychological fitness for surrogacy.
PENALTIES FOR OFFENCES
In Chapter VII of the Bill, the offences have been identified under this bill and penalties prescribed for commission of such offences.
Involvement in commercial surrogacy through advertising or practicing, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy are the offences under this Act. Every offence under this Act is cognisable, non-bailable, and non-compoundable.
The punishment for commission of these offences is imprisonment for 10 years and a fine up to 10 lakh rupees.
CONSTITUTIONAL VALIDITY OF THE BILL
While the advantages of the Bill are limited, the disadvantages of the same are multifaceted. The right to life, under Article 21 of the Constitution enshrine the right to reproductive autonomy, inclusive of the right to procreation and parenthood. It is not the domain of the state to interfere with such rights as it constitutes the fundamental rights. It is the prerogative of the persons to decide the mode of parenthood, that is, whether to have child born naturally or by means of surrogacy.
Article 14 of the Constitution guarantees a fundamental right to equality. The Bill restricts the limited and conditional surrogacy to married Indian couples only and further disqualifies other persons, based on their nationality, sexual orientation, marital status and/or age. This shall not stand the equality test or the test of reasonable classification under the Article.
The Bill also limits the autonomy of married couples and potential surrogates to a huge extent, by means of stringent conditions and requirements of eligibility certificates. The heavy onus laying prerequisites such as childlessness, five years of non-conception for intending parents, the surrogate being a close relative, amongst others, are prone to criticisms
Besides this, the Bill blatantly ignores the fact that the women who opt for being surrogate mothers are from economically vulnerable backgrounds and for them, surrogacy is a source of livelihood. A complete ban on commercial surrogacy deprives them of their livelihood and rather, expects them to undergo reproductive labour without any compensation.
CHANGES MADE IN THE BILL
Before approving the bill of 2019, Rajya Sabha suggested 15 significant changes to be made to the bill. Some of them are as follows:
The Rajya Sabha select panel/committee suggested that the mother need not be a ‘close relative’ of the intending parents.
The five-year wait period before a couple can apply for surrogacy to be done away with, and single woman and people of Indian origin be allowed to access surrogacy. The panel suggested any ‘wiling women’ is to be allowed for surrogacy.
The committee also recommended insurance cover for surrogate mother to be increased from 16 months to 36 months.
As for the eligibility criteria for accessing surrogacy, the committee recommended removing the definition of ‘infertility’. They also proposed that obligation for inability certificate is not reasonable.
The Surrogacy (Regulation) Bill, 2019 has been a matter of countrywide debate due to the restrictive nature of its provisions. The bill has made limitations as to what are the necessary requirements to be indulged in the practice of surrogacy. The proponents of the Bill contend it is within the reasonable limitations to safeguard the surrogate mothers and children from any sort of exploitation in the hands of the intended couple. The suggestion made by the Rajya Sabha panel makes the bill more prompt and reasonable.
The Surrogacy (Regulation) Bill, 2019.
The Constitution of India.
Image from here