The Surrogacy (Regulation) Bill

What is Surrogacy?

When an another woman carries and gives birth to a child for a couple who want to have a baby but are unable to do so, because of infertility or some other problem, it is called surrogacy. This has been in the grey legal area in India.

What is the need for the bill?

• In 2002, India became the first country to legalise commercial surrogacy.
• By 2012, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually.

• Surrogate mothers practice it as a way of earning livelihood and are often abused.
• Legal issues also emerge
• e.g In 2008, a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split and there were no takers for the child.
• In 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that was born.
• So the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy.

What is the aim of the bill?

• It aims to prevent exploitation of women, especially those in rural and tribal areas.
• It prohibits couples who already have biological or adopted children from commissioning babies through surrogacy.
• It ensures parentage of children born out of surrogacy is “legal and transparent.”

What are the features of the Bill?

• The bill was introduced in Lok Sabha in November 2016.
• There is a ban on commercial surrogacy.
• Commercial surrogacy will result in a jail term of at least 10 years and a fine of up to Rs 10 lakh.
• The commissioning couples should be Indians, should have been married for at least five years and should have ‘proven infertility’ are candidates.
• Only a married blood relative to the commission parents can be a surrogate mother. She must have herself borne a child, and should not be a NRI or a foreigner,
• Under no circumstances money shall be paid to her, except for medical expenses.
• She can be a surrogate only once in her lifetime.
• Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning the services of surrogate mothers.
• In essence, the Bill limits the practice of surrogacy to heterosexual Indian couples who have been married for five years, have no children, and are able to persuade a relative to become a surrogate altruistically for them.
• The Bill will apply to the whole of India, except Jammu and Kashmir.

What are the shortcomings?

• Disqualifying on the basis of nationality, marital status, sexual orientation or age, is against the right to equality.
• The right to life includes the right to reproductive and right to parenthood. So the state should not decide the modes of parenthood

• Sudden interruption would just push the $400 million industry underground. Thus the very purpose of the bill- to protect surrogate mothers from exploitation would be defeated.
• Fertility specialists and attached business would suffer.
• Commissioning mothers, who are carrying a child, would be left in a limbo.
• Restricting only a blood relative to be a surrogate mother is illogical and unreasonable.