Lok Sabha gave its nod to The Surrogacy (Regulation) Bill, 2019

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On Monday, August 5, 2019 the Union Cabinet agrees to pass the New Surrogacy (Regulation) bill, 2019. The bill was introduced by Minister of Health and Family Welfare, Dr. Harsh Vardhan in theLok Sabha on 15th of July, 2019.The aim of the bill is:

  • To protect the rights of the three, i.e. the couples, the surrogate mother and the new born child.
  • To make parentage of Surrogate Children legal and transparent.
  • To evolve a Statutory System for the commission of Surrogacy.
  • To prohibit the commercialization of Women’s Womb.

Salient Features of the New Surrogacy (Regulation) Bill, 2019

Introduced by Minister of Health and Family Welfare, Dr. Harsh Vardhan in July 2019, he stated that, “It is the need of the hour,” to mitigate the many “reports concerning unethical practices, abandonment of children born out of surrogacy and exploitation of surrogate mothers.” The bill got approved by the Lower house of the Parliament and introduced in the Upper house for sanction. The attributes of The Surrogacy (Regulation) Bill, 2019 is:

  • The Commercial Surrogacy or the practice of ‘Rent a Womb’ , has been done away with, allowing only the Altruistic form of Surrogacy. That means, the commercial aspect surrogacy has been done away with. The Altruistic Surrogacy refers to those Surrogacy where the Surrogate do not receive any monetary compensation from the couple, except from the medical expenses incurred. These Surrogates are the close relative of the intended parent. In contrast, Commercial surrogacy involves selling, buying, or trading services with the surrogate, by way of monetary incentive or remuneration in cash or kind.In brief, the Surrogacy can not be like the commercial contract which have the binding effect in Court of Law.
  • The bill only allows only the legally married couples, who must be the citizen of India, as well as proved to be “infertile”. The couple must be married for at least 5 years aged between 23 to 50 years old in case of females and 26 to 55 years old in case of males to opt for Surrogacy. Also, the couple must not have any surviving child (biological, adopted or surrogate); excluding a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness;
  • The bill prohibits the NRIs, Foreigners and PRIs to opt for the Surrogacy in India. The Commercial form of Surrogacy was legalized in 2002, in order to promote the medical tourism in India. As a result, India became the hub of Commercial Surrogacy. Driven by the causes like Low cost and the absence of strict legislation, the commercialization of Surrogacy became the booming business in the country.
  • The Bill also provides for the Constitution for the process of Surrogacy in India. The Bill propounds to have a Statutory Authorities within 90 days of Bill, both in Central level, i.e The National Surrogacy Board as well as in the State Level i.e The State Surrogacy Boards. Functions of the NSB include, advising the central government on policy matters relating to surrogacy, laying down the code of conduct of surrogacy clinics, and  supervising the functioning of SSBs. The Surrogacy Clinics must be registeredunder these authorities. Theabsence of strict legislation led to concern over the huge exploitation of surrogate mothers as well as their babies prompting the need of Statutory Regulation.
  • The bill, further sets the eligibility criteria for the surrogate mother as well. According to The Surrogacy (Regulation) Bill, 2019 the surrogate mother has to be a close relative of the intending couple The surrogate must be a married woman having a child of her own aged between 25 to 35 years  Further, the surrogate mother can surrogate only once in her lifetime and must possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Criticism of the Bill

As the bill was sought to be introduced in the Lower House, Congress MP Shashi Tharoor put on several objection to the provisions in the Bill. He objected that “the bill prohibits the same sex couples to opt for surrogacy even though there have been a credible scientific research that the same sex parents is as good as the sexual parents.” So itviolates Article 14 as it treats equals unequally and Article 21 as the bill violates Right to Privacy. Further, he aslso argued that the Bill propounds that the married couples have to wait for at least 5 years to have children which is the “unreasonable restriction”on their Reproductive Rights as well as the Right to Life guaranteed under Article 21. Hence, the Bill puts in place the stricter guidelines for couples opting for surrogacy.

The countries like US(except New Hampshire, California and Arkansas which are Surrogacy friendly states), UK, Belgium, Denmark and Australia allows only the Altruistic form of Surrogacy. While the Surrogacy is illegal in the countries like France, Germany, Italy, Spain and Portugal, Finland. The countries like  Iran, Ireland, Japan, Chile, Czech Republic, Malaysia and Kenya have the unregulated surrogacy laws.

By:

Sakshee Sahay

Student Member, INBA