A CRITICAL APPRAISAL OF THE SURROGACY (REGULATION) BILL, 2020
Author: Jalaj Agarwal
Co-Author: Gracy Bindra
Symbiosis Law School, Pune
Surrogacy is a method or practice whereby a woman agrees to carry out pregnancy for another person or persons, who will become the newborn child’s parent(s) after birth. It is thus regarded as a contract in which a woman carries a baby for another couple. Due to the lack of any legal framework for regulating surrogacy in India, there have been numerous instances of exploitation of the surrogate mother as well as of honest couples intending surrogacy. For this reason, the Indian legislators have been constantly trying to come up with a proper law covering these activities in the country but without any actual success. However, recently the Surrogacy (Regulation) Bill 2020 was introduced and passed by the Rajya Sabha to achieve several similar objectives. This article briefly provides the meaning and background of surrogacy in India; it further analyzes the features of the new bill by stating its significance and also looks at the potential loopholes present. It also looks at the legal aspect of surrogacy in different jurisdictions across the world to form a better understanding of the Surrogacy regulation regime in India.
The word “surrogate” has its origin from the Latin word “Surrogatus”, meaning a substitute, that is, a person appointed to act in the place of another. As per the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person.Surrogacy is thus regarded as a practice or method in which another woman agrees to carry out pregnancy for another person(s) who will be the child’s parent(s). This is done to complete a family with the help of another person lending a body to carry out the process of childbirth.
In recent times, India has emerged as a surrogacy hub for couples who are incapable of having a child and have attracted not only Indians but people from other countries as well.Large numbers of desired couples from all over the world come to India for surrogacy due to relatively low cost and also due to a lack of proper and stringent laws. As a result of this, there have been various instances concerning/showcasing unethical practices, exploitation in this type of business, emotional and physical needs of surrogate mothers and abandonment of children born out of this arrangement and multiple rackets carried out all with sole motive of profit maximization in India. This prompts for stringent laws and the same has been observed by the Law Commission of India in its 228thReport where they have recommended proper regulation of surrogacy. Along with citing concerns over the prevalent ill use of surrogacy and lack of a proper legal framework to govern the same resulting in exploitation, report also observed that most of the surrogate mothers are vulnerable and get into this business due to poverty and lack of education. The middlemen and commercial agencies take undue advantage of this and leave these women with no power to decide about their own body and life.The various types of surrogacy are:
On the basis of Selection of Surrogate Mother:
§Altruistic surrogacy: Under this surrogacy, the surrogate mother does not receive any financial compensation/awards for her pregnancy or the abdication of the child to the genetic parents except necessary medical expenses.
§Commercial surrogacy: Under this surrogacy method, the surrogate mother is to be paid over and above the necessary medical expenses.
On the basis of Embryos:
§Traditional Surrogacy: Under this method, the surrogate mother goes through an artificial insemination and further carries the child for the full term and delivers it for the couple. The surrogate mother is also the biological mother.
§Gestational Surrogacy: This is one of the most commonly used methods wherein the biological mother is the one whose eggs are used to fertilize and the surrogate mother is the one who delivers the child and is known as the birth mother. In this process of fertilization, the eggs of the mother are fertilized with the father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate through the in vitro fertilization method.
The Bill of 2020 aims at reducing chances and instances of exploitation by banning commercial surrogacy as is the case in many countries worldwide. Commercial surrogacy is illegal in countries like Ukraine, California and many states in the United States. In contrast to this, some countries neither have proper legislation to govern the commercial arrangement of childbirth nor recognize these agreements, such as Germany, Sweden, Norway, and Italy.The 2020 Bill aims at giving higher positions and more safety and rights to the surrogate mothers which will be elaborated further in the paper.
The practice of such reproductive techniques in India can be traced back to its history with instances of it being used in primitive times. As it is stated in the great Indian epic Mahabharata, all the hundred sons (Kauravs) of the king of Hastinapur, Dhritrashtra were born through the IVF process.In contemporary India, such practices became successful with the birth of India’s first and world’s second IVF baby Kanupriya, also known as “Durga”. She was born in Kolkata on October 3, 1978, and since then the area of assisted reproductive technology in India has shown great developments. India’s first surrogate baby was born on 23 June 1994. Surrogacy is a medical process that has matured over the years and India has become a booming center for the fertility market.
In 2005, the Indian Council of Medical Research (ICMR) issued the National Guidelines for the Accreditation, Supervision, and Regulation of ART Clinics in India to regulate surrogacy arrangements.The guidelines provided that the surrogate mother would be entitled to monetary compensation, the amount of which will be decided between the parties. It also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must give up all parental rights related to the surrogate child.
In 2008, the Supreme Court of India in the case of Baby Manji Yamada vs. Union of Indiaemphasized on the lack of regulation for surrogacy practices in India. In this case, a child (Baby Manji Yamada) was born to an Indian surrogate mother for a Japanese couple. But, before a month of the child’s birth the couple separated and the future of the child was left in dim. The father wanted to take the child back to Japan but the legal framework provided no such provision for a case like this, nor did the Japanese government allowed him to bring the child back home as she held neither Indian nor Japanese nationality. In the end, the Supreme Court of India intervened and the child was allowed to leave the country with her grandmother. The biggest impact of this decision was that it prompted the Indian government to develop a proper law regulating surrogacy.
On 5th of August, 2009, the Law Commission of India submitted the 228th Law Commission Report titled, “Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy”.In this report, the Law Commission of India remarked that surrogacy arrangements in India were being used regularly by foreign nationals, and the lack of a comprehensive legal framework addressing surrogacy could lead to exploitation of poor women acting as surrogate mothers. Further, it recommended prohibiting commercial surrogacy, allowing only altruistic surrogacy and enacting a law to regulate matters related to surrogacy.
Finally, on November 21, 2016, the government introduced The Surrogacy (Regulation) Bill, 2016 in Lok Sabha. It provided for an arrangement whereby an intending couple commissions a surrogate mother to carry their child. But the 2016 bill lapsed owing to the adjournment sine die of the parliament session. The bill was later reintroduced and passed by the Lok Sabha in 2019.
The Surrogacy (Regulation) Bill, 2019 was introduced in Lok Sabha on July 15, 2019, and was passed on August 5, 2019. The Bill defined 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. In the Rajya Sabha, the Bill was referred to a Select Committee headed by Shri Bhupendra Yadav, for examination and consultation on November 21, 2019, and it submitted its report on February 5, 2020.
The committee after consideringthe views/suggestions of the concerned stakeholders on the said bill gave certain recommendations in general and particularly on the points enumerated below:
- Definition of infertility
- Surrogate mother need not be a close relative
- Insurance of Surrogate mother
- Single woman (divorcee or widow) should be allowed to avail surrogacy
- To bring the ART Bill before the Surrogacy Bill, to establish a regulatory mechanism for ART clinics.
The 2020 bill incorporates all recommendations made by the Rajya Sabha select committee. The amended bill is thus a reformed version of the draft legislation which was passed by Lok Sabha in August 2019.
Assisted Reproductive Technology Regulation Bill, 2020
The Union Cabinet following the recommendation of the Select Committee approved the Assisted Reproductive Technology (ART) Regulation Bill, 2020 to monitor medical procedures used to assist people to achieve pregnancy. The Bill is designed to regulate the Assisted Reproductive Technology services in the country. ART methods are used to treat infertility. It includes fertility treatments that handle both a woman’s egg and a man’s sperm.In Vitro fertilization (IVF) is the most commonly used and effective type of ART. ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos. It may also involve a surrogate carrier.
India has now become one of the main hubs for the global fertility industry (ART), with reproductive medical tourism becoming a significant activity. This has also led to plenty of legal, ethical and social issues, but still, there is no standardization of procedures and reporting is inadequate. The ART Regulation Bill is a comprehensive step to regulate this sector. Without registration and a proper database of medical institutions and clinics providing such services, it is unfeasible to regulate services like surrogacy and abortion. It needs to be noted that both the Bills are designed around protecting and recognizing women’s reproductive rights.
The Surrogacy (Regulation) Bill, 2020 incorporated all the major changes suggested by the 23 members’ select committee of Rajya Sabha which was approved by the Union Cabinet. The significant features of the bill are as follows:
- Definition of surrogacy– Section 2(c) of The Surrogacy (Regulation) Bill, 2019 defined “surrogacy” as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth. Various parts of the same has been changed in the new bill. Commercial surrogacy has been banned but altruistic surrogacy is allowed. This bans any monetary compensation to the surrogate mother involved in this process other than the medical expenses during pregnancy. Any monetary benefit beyond basic medical expenses is not allowed anymore to curb the exploitation of women.
- Definition of infertility – Like the previous bills described “infertility” as the inability to conceive after five years of unprotected intercourse; the same has now been deleted under the Bill of 2020 as the committee was of the view that it is a long period for a couple to wait for a child and regarded it as unreasonable and against the objective of the act.
- Circumstances where surrogacy is allowed – The ambit of practice of surrogacy was described in Section 4 of The Surrogacy (Regulation) Bill, 2019 which provided for altruistic surrogacy for intended couples where either of the partners suffered from infertility. But the Bill of 2020 has extended this provision to single parents, divorced women as well as to the widows.
- Eligibility criteria for intending couple–There was no provision to ascertain the authenticity of the parents to avoid commercialization or prostitution purpose use of the children born out of surrogacy. As per Section 4 (iii) (a), The Surrogacy (Regulation) Bill, 2019,‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority is a vital part of the procedure of surrogacy The certificate of eligibility to the intending couple is issued upon fulfillment of the following conditions:
- certificate of proven infertility of either or both partners from District Medical Board
- an order concerning the parentage and custody of the child to be born through surrogacy has been passed by a court of the Magistrate of the first class or above, on an application made by the intending couple and the surrogate mother
- insurance coverage of such amount as may be prescribed in favour of the surrogate mother for a period of sixteen months covering postpartum delivery complications from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999
Furthermore, the new bill also allows Persons of Indian Origin (PIOs) to avail surrogacy in the country, after obtaining a certificate of recommendation from the surrogacy boards.
- Eligibility criteria for surrogate mother–The new Bill recognises any “willing mother” to be the surrogate mother and abolishes the pre requisite of her to be a close relative. The committee did so because it would restrict the availability of surrogate mothers affecting the people in need. As per Section 4 (iii) (b) (II) surrogate mother needs to obtain a certificate of eligibility from the appropriate authority. She requires to be :
- a married woman having a child of her own;
- 25 to 35 years old on the day of implantation
- a surrogate only once in her lifetime; and
- Possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.
- Appropriate authority– “Appropriate authority” has been defined under Section 32 of the Bill. The provision requires the central and state governments to appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority would include; (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifications to the rules and regulations.
- Registration of surrogacy clinics–Earlier there was no provision of registering surrogacy clinics, this led to rackets who took undue advantage of vulnerable women. As per Section 10 of the 2019 Bill, surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority. Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority. The ART bill will further regulate the working of such clinics.
- National and State Surrogacy Boards– There was no regulation of Boards by the government. In the new Bill, whole of Chapter V has been dedicated to it hence emphasising the importance of the central and the state governments. It shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB would include, (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.
- Parentage and abortion of surrogate child– It has been defined in Section 4(iii)(a) explanation I wherein, a child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. An abortion of the surrogate child requires the written consent of the surrogate mother and the authorization of the appropriate authority. This authorization must be compliant with the Medical Termination of Pregnancy Act, 1971. Further, the surrogate mother will have an option to withdraw herself from surrogacy before the embryo is implanted in her womb.
- Insurance cover– The committee after 10 meetings recognized that the surrogate mother could face high risks of medical complications and health issues even after pregnancy. Hence, the insurance cover for surrogate mother has now been increased from 16 months to 36 months, other than the necessary monetary expenses during pregnancy
- Offences and penalties– Chapter VII list down the offences and penalties under the Bill. This includes: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv)selling or importing human embryo or gametes for surrogacy. The penalties have been decided as imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.
- Single Parents/Divorcees/Widows– As the Bill extends the procedure of surrogacy to the single parents, divorced and widow women between the age group of 35-45 years, it specifies that the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child, which is resorted to if biological (natural) parents and adoptive parents are different.
The Surrogacy (Regulation) Bill 2020, when passed will be one of the most significant legislation of its time in India for protecting the rights of parents and surrogate mothers. Such legislation has been long overdue in a country like India which has become a global hub for surrogacy. With repeated reports of exploitation of women, lack of adequate safeguards during the pregnancy and little or no post-pregnancy medical care, a proper legal framework was of utmost importance to regulate surrogacy practices and people involved in it to achieve the desired result.
Additionally, by allowing a “willing woman” and not just a “close relative” to be a surrogate mother, the legislators have made a remarkable move as in today’s time families are becoming smaller, making it harder for couples to find somebody close enough among their relatives to be a surrogate. The Bill also allows only altruistic surrogacy, where there is no element of coercion and a surrogate agrees to be one in the spirit of helping somebody. It further seeks to establish surrogate clinics for mothers at the district level, with a female medical practitioner appointed full-time to ensure the benefits of these techniques can reach the remote areas and people are more comfortable and acceptable to such practices.
This will thus help in reducing prevalent unethical practices, exploitation of poor or illiterate women, and abandonment of children. It can further help in the dismantling of rackets involved in trafficking in human embryos and removing unnecessary middlemen and agencies from the scene.
Although, the Bill is a landmark step by the government to regulate surrogacy and uplift the rights of the women, there are certain potential loopholes or lacunas present in the Bill which require better provisions in order to attain success and meet the objectives, these are:
- The proposed Bill excludes homosexuals to benefit from the process of surrogacy in spite of Indian courts decriminalising same sex marriages and keeping them at par with heterosexuals.
- The bill has taken a good step by proposing to ban all forms of commercial surrogacy and pre requisite of close relative. Although, it shows a condescending view adopted by the government which has taken it in their hands to decide the good and bad for the citizens by depriving them of their freedom and right to make their own choices. This strict regulation can turn the goals set by the Bill to be achieved upside down and make it an issue of moral and ethics. The proposed provisions in the Bill might increase chances of unethical practices and corruption as no woman would be willing to carry other’s baby without any monetary compensation.
- On one hand, Article 14 of the Constitution of India keeps all citizens equal before law. On the other hand, this bill imposes restrictions on the right to have a surrogate child. The Bill also excludes foreign single individuals and NRIs and defies the part where Indian citizens could have married people of another country and wished to have child through surrogacy.
- The Supreme Court had decided in the landmark judgement of Khushboo v. Kanniammal, that a living relationship is a fundamental right and comes within the ambit of Article 21 of the Constitution of India which ensures right to life to every person. The Court further held that any live-in relationship was permissible and the act of two majors living together could not be considered illegal or unlawful. By way of this decision, the Court put the live in relationships at par with marriages and children born out of this relationship as legitimate children. However, the proposed Bill limits the option of surrogacy to these couples, thus opposing the position of live in relationships.
- The process of adoption available to the coupleswho already have a child born out of wedlock, cannot apply for surrogacy but instead could avail procedure of adoption. This remedy could be long and tedious and since bloodline could be a factor for many families, it stops people to move from surrogacy to adoption.
- The Bill lacks in setting the parameters for medical practice and completely ignores the regulation of the third party agents who play a pivotal role in arranging surrogates such as surrogacy agents, tourism operators, and surrogacy home operators. Thus making the bill far from the practicality of the society.
- Indian courts have come across many cases where citizenship of the child became an issue. In the famous German couple case wherein a child was born to a German couple in India through surrogacy but surrogacy is not recognized in the land of Germany but is regulated in India, citizenship, as well as immigration of the child, was an issue before the court. The Gujarat High Court held that in the absence of any legislation like in the particular case, the court is inclined to recognize the gestational surrogate who has given birth to the child as a natural mother and anonymous egg donor cannot be regarded as natural mother. Thus the Supreme Court resolved the issue of the surrogate mother is the natural mother. The legislature has still not taken out proper legislations for this legal hurdle and instead left it on courts to decide on a case to case basis.
The legal aspect of surrogacy varies from country to country because of the different conceptions regarding its practice. Some jurisdictions completely bans surrogacy; some declare commercial surrogacy as a criminal offence, while on the other hand, some jurisdiction allows surrogacy on limited grounds of altruism. Thus, whether or not surrogacy is legal and acceptable in a country depends on the type of surrogacy. Altruistic surrogacy is the most commonly legalized form of surrogacy, where the surrogate is only reimbursed for any expenses during the pregnancy, such as travel or medical bills, and no extra fee is given over it. Commercial surrogacy is only legal in a few countries, where the surrogate is paid a fee for carrying out the pregnancy. Some Jurisdictions are hereby discussed:
- AUSTRALIA: Regulation of Surrogacy in Australia varies with each State, which means there are no uniform laws that cover surrogacy across the country. But the Surrogacy laws in all states follow the same basic principle that the Intended Parents must not be able to either conceive or carry a baby themselves or if they can, to do so would be risky. The surrogacy arrangement must be altruistic. Commercial surrogacy is illegal in all States in Australia. Thus the surrogate mother cannot be paid for carrying a baby for someone else. When the baby is born, the birth is registered in the State where the baby is born, with the surrogate and her partner listed as the baby’s parents on the Birth Certificate. After the birth, the Intended Parents can apply to the Court for a Parentage Order in the State where they live. The Order transfers parentage from the birth parents to the intended parents. The Birth Certificate is then re-issued with the new parents listed, instead of the surrogate and her partner.
- CHINA:Surrogacy is neither prohibited nor expressly permitted by law in China. The Ministry of Health has established “departmental rules” which prohibit medical professionals from performing surrogacy procedures, with violations punished by fines but it does not provide for any criminal liabilities. In practice, surrogacy arrangements are common in China, with an underground market for commercial surrogacy.
- FRANCE:Since 1994, any type of Surrogacy whether commercial or altruistic is regarded as illegal and unlawful in France on account of art 16-7 of the Code Civil which provides that “All agreements relating to procreation or gestation on account of a third party are void.” In 1991, the French Court of Cassation had already held that if any couple makes an agreement or arranges with another person that she is to bear the husband’s child and surrender it on birth to the couple and that she is choosing that she will not keep the child, the couple making such an agreement or arrangement is not allowed to adopt the child. This was held as illegal on the basis of articles 6, 353 and 1128 of the Code Civil.
- UNITED STATES: In the United States, like Australia, Surrogacy regulation falls under state jurisdiction and the legal situation for surrogacy varies from state to state. There are some states with written legislation, while others use common law regimes for Surrogacy regulation.There are some US states which are regarded as Surrogacy friendly globally as they provide easy facilitation of Surrogacy contracts while some states refuse to enforce them and provide a penalty for commercial surrogacy. Generally, only gestational surrogacy is supported and traditional surrogacy finds little or no legal support.
Infertility is generally regarded as a social stigma in India. It often inflicts agony and trauma in the life of the individual for not being able to achieve parenthood for no fault of his or her own and often has devastating effects on such individuals. With the immense advances in the field of medical science, infertility can now be neglected using the different types of Assisted Reproductive Technologies available such as Surrogacy. There are different types of infertilityand in some cases, it is physically or medically impossible/ undesirable to carry a baby to term and hence, to fulfill the desire of such infertile couple to have a child, surrogacy comes as a vital method.
The Surrogacy Regulation Bill2020 thus is a landmark achievement on several grounds for a country like India which has its own socio-legal problems. It is also been seen that with years of lack of legal framework the legislators have remedied several discrepancies prevalent in the previous bills by adding various new features in the subsequent bill. Though as mentioned above there are still certain loopholes present, which with time and implementation can be amended and made according to the present need of the society. A strict monitoring system should be developed and misuse of the code of conduct should be severely punished. However, it should not be a deterrent for preventing infertile couples from availing of the benefits of technological developments. An overall review of the scenario suggests that surrogacy is a baneful scientific technique that can be used to fulfil the void in the life of desired couples, but effective legal provisions should be made in order to prevent its misuse in any manner. The only thing that is to be seen now is whether this Bill, unlike its predecessors, could become an Act and finally give India its much needed legal framework to regulate surrogacy practices in the country.
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