Explained: Surrogacy (Regulation) Bill, 2019

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Since time immemorial, the human race and its environment has changed, developed and advanced with time but one thing still remains constant that is the urge of this race to procreate. And why not this basic urge is necessary for the survival of the human species as well.

Humans are the only species that have a tendency to maintain a life-long emotional bond with their children and thus this urge of procreation is not just a physical one but rather an emotional one as well. And although mostly, people manage to successfully procreate, at times due to certain situations it is not possible for them to give birth to a new life. This is when the idea of surrogacy comes into picture.

Surrogacy, provides people who otherwise cannot procreate with an option to have a child. Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Union Cabinet gave its nod to the Surrogacy Regulation Bill 2019, the bill that aims to prohibit commercial surrogacy was introduced in the Lok Sabha on the 15th of July. Commercial surrogacy a practice also known as rent a womb was legalized in India in the year 2002, in order to promote medical tourism and soon India became the hub of surrogacy driven by factors like low cost and the absence of a strict legislation.

Commercial surrogacy became a booming business in the country. According to a 2012 study by the Confederation of Indian Industry the size of India surrogate motherhood industry was 2 billion dollars a year. A study backed by the United Nations also conducted in the year 2012 estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country but the unregulated business led to concerns over the rampant exploitation of surrogate mothers as well as their children prompting the need for a legislation to regulate surrogacy in the country

What is the meaning of surrogacy and what is commercial surrogacy?

Surrogacy is a type of arrangement where a surrogate mother agrees to bear, carry and deliver a child for another couple, who will be called as the new born child’s parents after his or her birth. Surrogacy is basically a way out for couples, who either find it medically impossible to procreate or where there is a risk to mother’s health or in cases of same sex couples. 

Surrogacy contracts are also of two types: Commercial surrogacy and Altruistic surrogacy. It is distinguished depending on whether the surrogate mother receives payment for her pregnancy or not. Commercial surrogacy is legal in countries like Ukraine and California while it is illegal in England, also, many states of the United States and in Australia they only recognize altruistic surrogacy.

Germany, Norway and Italy do not even recognize surrogacy as a contract. Though India used to recognize commercial surrogacy and due to this it was one of the favorite destinations for fertility tourists, but after the passing of the Surrogacy (Regulation) bill, 2019, commercial surrogacy is completely banned in India as well, and India currently only recognizes altruistic surrogacy.

What are the disadvantages of commercial surrogacy?

There are certain major disadvantages in exercising commercial surrogacy. It is important to understand that the cons of commercial surrogacy are not just one but can be distinguished under several head:

  • Moral/Ethical Issues
  • Social Issues
  • Economical Issues
  • Emotional/Psychological Issues
  • Health Issues: Mother and Child
  • Legal Issues

There are also certain important reasons why a new law regarding this context was needed:

  • Commoditization of child
  • Degrades motherhood
  • Reproductive Labor: An unethical practice

How does the new law seek to control surrogacy?

The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.

The bill also lays down certain other guidelines regarding the aspect of surrogacy like its purposes, the eligibility criteria for intending couples, eligibility criteria for surrogate mothers, what are the appropriate authorities to take and decision or step in this regard, guidelines for registration of surrogacy clinics, constitution of national and state surrogacy boards, guidelines in reference to parentage and abortion of surrogate child, offences and penalties.

By putting down guidelines for almost all the aspects of surrogacy this new law seems to take a strong hold and control over the concept of surrogacy.

What are the challenges in its implementation?

There are certain criticisms that are there which can be considered as a reason for the difficulty in the implementation of this bill. These challenges or criticisms of the new bill are:

  • It prevents same sex couples and individuals from having surrogate children and is violative of Article 14 of the Indian Constitution
  • It violates the right to privacy of couples and surrogate mothers.
  • The eligibility condition under the Bill amounts to unreasonable restriction on the reproductive rights of a married Indian couple, violative of Article 21 of the constitution.
  • The Bill raises questions over the reproductive rights of a woman.
  • Infertility cannot be compulsory to undertake surrogacy. This violates the Freedom of choice available to citizens

In conclusion…

Surrogacy is one of the best means of having baby. It is one of the most promising treatments for infertility. It can actually solve out a lot of problems and difficulties that an infertile couple faces not only in physical terms but in mental and emotional terms as well.

And even though, surrogacy has faced its fair share of oppositions and criticisms time and again, it is necessary to note that this idea or concept of having a child is not new in today’s world but rather has existed since time immemorial.

Although it definitely requires a lot of review and reconstruction in terms of the legal provisions that are to govern it, so that the rights of all the parties involved in such a procedure is protected and this beneficial deed for humankind doesn’t turn out to be a way of exploitation in any case.

And even though India has come up with the new Surrogacy Regulation Bill, 2019, there is still a lack of internationally recognized laws creates difficulties for aspiring parents. In cases where intended parents go to surrogacy friendly countries, it can take a long time to bring a surrogate baby back to their home country.

This is due to different surrogacy laws in the home country and the country where the baby is born. Many experts argue that an international agreement similar to the Hague adoption convention could provide consistency across countries thereby making the process more streamlined.

This article is brought to you in collaboration with Aprajita Jha from National Law University and Judicial Academy, Assam.