List out the important provisions of Surrogacy (Regulation) Bill, 2019.
Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, she will not raise but hand over to a contracted party. The practice of Surrogacy has been prevalent in India for the last few decades now and has been on a rise ever since it has been introduced. The process of surrogacy involves multiple parties and substantial consideration of their human rights. Therefore, it is imperative that the interests of every party must be balanced harmoniously to prevent any miscarriage of justice
The provision of surrogacy, introduced as a scientific feat enabling couples to have a child of their own, is now being abused by many for their personal gain at the expense of the rights of surrogate mothers and surrogate children. There have been reported incidents of unethical practices in the process of surrogacy, death of surrogate mothers, exploitation of surrogate mothers, abandonment of children born out of surrogacy import of human embryos and gametes.
The reason such exploitation bloomed in India is regulatory ambiguity caused by the lack of proper legislation for surrogacy. Due to lack of a proper legislation on the matter, India has also emerged as a surrogacy hub globally and this scenario has given rise to various socio-ethical issues.
In an attempt to counter this widespread exploitation, The Surrogacy (Regulation) Bill, 2019 was passed by the Lok Sabha on 5th August 2019 and now awaits the passing of the bill in Rajya Sabha before it receives presidential assent and serves its purpose.
The Bill allows altruistic surrogacy, a selfless arrangement where only medical expenses and insurance cover are provided to the surrogate mother, and there’s no room for any other monetary reward. The bill also, by virtue of Section 4, allows surrogacy in cases of proven infertility. The provision also prohibits surrogacy for producing children for sale, prostitution or other forms of exploitation.
Eligibility to undertake Surrogacy
The bill provides for constituting a National Surrogacy Board and State Surrogacy Boards under Chapter V, for regulation of surrogacy. It also intends to appoint other appropriate authorities who shall be empowered to issue ‘certificate of essentiality’ and ‘certificate of eligibility’ to the intending couples under Section 4 of the Bill.
A certificate of essentiality will be issued to the couples who possess:
(i) a certificate of proven infertility from a District Medical Board;
(ii) an order of parentage and custody of the surrogate child from a Magistrate’s court; and
(iii) insurance cover for the surrogate mother for a period of 16 months.
A certificate of eligibility will be issued to the couples:
(i) who are Indian citizens, married for at least 5 years;
(ii) where the wife is aged between 23 to 50 years and the husband is aged between 26 to 55 years; and
(iii) who do not have any surviving child, whether biological, adopted or surrogate, not including a special child or a child who suffers from life threatening illness.
Eligibility of Surrogate Mother
Section 4 of the bill also lays down eligibility criteria for a surrogate mother and she is bound to obtain a certificate of eligibility from the appropriate authority. She has to be:
(i) a close relative of the intending couple;
(ii) a married woman having a child of her own;
(iii) aged between 25 to 35 years;
(iv) a surrogate only once in her lifetime; and
(v) in possession of a certificate of medical and psychological fitness for surrogacy.
Protection of Surrogate Child
Section 7 of the bill imposes prohibition on abandoning a child born out of surrogacy, for whatsoever reason. In fact, a surrogate child shall be deemed to be the biological child of the intending couple.
Further, Chapter IV of the bill prescribes that no surrogacy clinics shall operate without due registration, granted by the appropriate authority. There is also a prohibition on aborting a surrogate child without written consent of the surrogate mother and the authorization of the appropriate authority. This authorization, so granted by the authority, must be compliant with the provisions of Medical Termination of Pregnancy Act, 1971. The surrogate mother will however have the option to withdraw from surrogacy before the embryo is implanted in her womb.
Offences and penalties
Section 35 of the bill prescribes a punishment of imprisonment up to 10 years and a fine up to Rs. 10 lakh in case a person is found:
(i) advertising commercial surrogacy in any form.;
(ii) exploiting the surrogate mother;
(iii) abandoning or exploiting a surrogate child; and
(iv) selling or importing human embryo or gametes for surrogacy.
(i) This holistic bill passed by the LS has provided a definition of infertility which is restricted to failure to conceive and does not take into its gamut other reasons such as the case of a woman who is able to conceive but is unable to carry a child through the period of the pregnancy.
(ii) The bill does not provide a definition of “a close relative”, leaving room for unwarranted manipulation and inclusions.