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What is Surrogacy? The Surrogacy (Regulation) Bill 2019, Laws in India?

What is Surrogacy? The Surrogacy (Regulation) Bill 2019, Laws in India?

Relevance:

  • GS 3 || Indian Society || Women || Issues Concerning Women

Why in the news?

Surrogacy again came in news after actress Priyanka Chopra Jonas and her husband Nick Jonas recently announced on social media that they have welcomed a baby via surrogate.

Understanding concept of Surrogacy in details:

What is surrogacy?

  • Surrogacy is the term used to describe a woman carrying another woman’s child. The mother must be safe, have a low risk of complications during the pregnancy, and be able to give the baby to the genetic parents from whose egg and sperm it was born, after delivery.
  • Surrogacy was a topic debated in India for a long time. The ethicality of borrowing a womb from the moral and legal complexities that surround it has always been of concern. The Surrogacy Regulation bill attempts to regulate the Surrogacy practice by banning practices such as hiring womb. This aims to strike a delicate balance between the interests of infertile couples and Surrogate mothers’ human rights

How does it work?

  • Surrogacy involves fertilizing the egg of a woman with the sperm of a sperm donor through medical procedures to make an embryo.
  • This embryo is then implanted in the uterus of the surrogate mother, who carries and eventually gives birth to the baby. This method is sought by both men and women who wish to have a baby via surrogacy.

Types of Surrogacy:

There are two type of surrogacy:

  • Traditional Surrogacy
  • Gestational Surrogacy

Techniques used for surrogacy:

  • Artificial Insemination: Under this technique, sperm of the intended father is placed into the surrogate mother uterus using artificial means to avoid the complexity of sexual intercourse.
  • In Vitro Fertilization: Under this technique, an embryo is implanted into womb of surrogate mother to develop their genetic baby.
  • An embryo might contain egg or sperm of intended parents, donated egg/sperm with sperm/egg of intended parent and both donated egg and sperm.

Various issues associated with surrogacy:

  • Weak remuneration: The woman bearing a baby usually earns far less remuneration and the ART clinics take a significant share.
  • Women’s health: Women’s health is a major surrogacy issue. Health is of little importance in India, as ART clinics generally ignore regular medical check-ups, no proper food, no special hostels for pregnancy or have very poor conditions in general staying home to live in.
  • Gender Selection: Surrogacy generally involves the selection of gender which is itself illegal in India. If it is a girl child, then in many cases, the surrogate mother either leaves with the baby or receives poor remuneration in comparison with previously decided. Many ART clinics named after surrogacy that illegally performs sex determination and abortion.
  • Risk to Baby Health: The surrogacy involves many risks to baby health such as genetic disorders, low birth weight or damage to the membrane, etc. as reported by many survey studies. Therefore, in the case of a baby defected or disabled, the baby has usually been left with a surrogate mother or in an orphanage and an innocent baby has to suffer for a lifetime as a result of a crime committed by his / her parents.
  • Trafficking in children and sex workers: The legal status of surrogacy in India helps grow the child trafficking industry, mostly sex workers are used
  • Database: surrogacy, however, has had a legal status in India for a decade and we have guidelines for the same, but there is no central database for ART clinics, surrogate mothers or other related surrogacy issues.
  • Legal loopholes: There is currently no legislation in place to regulate surrogacy and related matters in India. The surrogacy is governed by Indian Council of Medical Research (ICMR) guidelines and High or Supreme Court judgments. Since there is no law in place, surrogate mothers are unable to claim their rights from court or other authority, and suffer as a result.
  • Ethical issue: surrogacy results in child commoditization, breaks the connection between mother and child, interferes with nature and leads to the abuse of vulnerable women in developing countries.
  • International Issue: Foreign Surrogacy entails bilateral problems where the rules of both nations must be at par / uniformity or the concerns and desires of the parties involved will remain unresolved. Citizenship problems frequently occur because of a lack of knowledge about the laws of both countries

Features of the Surrogacy (Regulation) Bill, 2019

  • This calls for the establishment of surrogacy boards at national and state level, in order to ensure efficient oversight. It aims to allow the intended infertile Indian married couple to have ethical altruistic surrogacy between the ages of 23-50 years for the female and 26-55 years for the male.
  • Only Indian couples legally married for a term of at least 5 years may opt for surrogacy
  • It makes it compulsory for a couple to obtain an essential certificate and also an eligibility certificate before proceeding with the surrogacy. It also provides that intending couples should under no circumstances abandon the child born from surrogacy.
  • It also stipulates a different condition of eligibility for surrogate mothers.
    • The surrogate has to be a close relative of the intending couple and a married woman with her own child.
    • She would not have been surrogate earlier between the ages of 25-35 years and must be certified mentally and physically fit.
  • On the legal status of a surrogate child, the Bill states that the biological child of the intending couple shall be any child born from the surrogacy procedure.
  • All rights and privileges applicable to a natural child shall be granted to the newborn infant.
  • The Act also seeks to regulate the operation of surrogacy clinics. To undertake the surrogacy or its related procedures, all surrogacy clinics in the country must be registered by the appropriate authority.
  • Various safeguards are provided for surrogate mothers in the Bill. Another of them is for some time a medical policy that protects not only the pregnancy duration but even after that. It also specifies that no sex selection can be done when it comes to surrogacy.

Issues related to Surrogacy (Regulation) Bill 2019

  • Surrogacy is currently legitimate in India, because no Indian law prohibits surrogacy. Surrogacy (Regulation) Act 2019, however, aims to prohibit commercial surrogacy and instead allow for Altruistic surrogacy.
  • Altruistic surrogacy involves hiring a ‘near relative’ as a surrogate for a heterosexual married couple who had been childless for five years of their marriage.
  • However, the Bill lacks a ‘near relative’ interpretation.
  • On 5 August 2019 Lok Sabha passed the Surrogacy (Regulation) Bill , 2019. The Rajya Sabha adopted a motion at its meeting on 21 November 2019 to refer the draft law to a select committee.

Surrogacy (Regulation) Bill, 2020:

  • Union Cabinet has approved the Surrogacy (Regulation) Bill, 2020.
  • The amended bill is reformed version of the draft legislation which was passed by Lok Sabha in August 2019 but its provisions, including that only a close relative of a couple can be a surrogate mother, had invited criticism.
  • The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare in Lok Sabha on July 15, 2019.
  • It was passed in Lok Sabha on August 5, 2019.

Key Highlights of bill:

  • The Surrogacy (Regulation) Bill, 2020 aims at banning commercial surrogacy and allowing altruistic surrogacy.
  • Commercial surrogacy will be prohibited: While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to Indian married couples, Indian-origin married couples and Indian single woman will be allowed on fulfillment of certain conditions.
  • Benefit widows and divorced women:The Bill allows a willing woman to be a surrogate mother and would benefit widows and divorced women besides infertile Indian couples.
  • It provides for the constitution of surrogacy boards at the national as well as state levels to ensure effective regulation.
  • Ethical altruistic surrogacy:It seeks to allow ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.
  • Certificate of eligibility:Only Indian couples can opt for surrogacy in the country.It makes it mandatory for the couple to obtain a certificate of essentiality and also a certificate of eligibility before going ahead with surrogacy.
  • Entitled to all rights and privileges: It also provides that intending couples should not abandon the child born out of surrogacy under any condition. The newborn child shall be entitled to all rights and privileges that are available to a natural child.
  • Regulate the functioning of surrogacy clinics: The Bill also seeks to regulate the functioning of surrogacy clinics. All surrogacy clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.
  • Safeguards for surrogate mothers: The Bill provides for various safeguards for surrogate mothers. One of them is insurance coverage.It also specifies that no sex selection can be done when it comes to surrogacy.

Changes made to the old bill by the select committee:

  • It allows any woman who is “willing” to become a surrogate mother. (Bill 2019 also suggested that a surrogate mother should only be a close relative of a couple).
  • Deleting the definition of “infertility” as the inability to conceive after five years of unprotected intercourse on the ground that waiting for a child was too long for a couple.
  • Commercial surrogacy including the selling and purchase of human embryos and gametes shall be forbidden.
  • Only ethical surrogacy shall be permitted for Indian married couples, Indian married couples and Indian single wives (only widows or divorcees between the ages of 35 and 45) if certain conditions are fulfilled.
  • It proposes to regulate surrogacy by creating a central-level National Surrogacy Board and a State Surrogacy Board and appropriate authorities in the States and territories of the Union, respectively.
  • The existing insurance cover for surrogate mothers has now been extended to 36 months, from the previous edition of 16 months.

Importance of the changes:

  • In India, the tradition of surrogacy continued without any legal structure and operated only on the basis of ambiguous guidelines. Despite the amendments to the law, a legal system for controlling surrogacy should be implemented now.
  • In recent times, unethical practices have included the exploitation of surrogate mothers, the abandonment of surrogate-born children and the importation of human embryos and gametes have been reported. Many poor women in India have repeatedly taken to become surrogate mothers despite serious consequences for their health.
  • The prohibition of commercial surrogacy and the availability of 36-month protection would check the abuse of surrogate mothers as well as improve their welfare.
  • In its 228th report (2009) the Law Commission proposed that surrogacy should be governed by effective legislation. The Law Commission had proposed allowing only altruistic surrogacy, and absolutely prohibiting commercial surrogacy.
  • Restricting the surrogate mother to a “close relative” potentially affected surrogate mother availability. Also with the new bill a “willing woman” can serve as a surrogate mother. In addition to infertile Indian couples, also widows and divorced women will also benefit from the provisions.
  • The Surrogacy (Regulation) Bill 2020 is also an legal, moral and social statute, protecting the reproductive rights of a surrogate mother and protecting the rights of a child born by surrogacy.

Global practice on Surrogacy:

  • Commercial surrogacy is legally allowed in countries like Russia, Ukraine, and Thailand.
  • In France, Germany, Spain, Sweden, Italy and Iceland, surrogacy is banned in all forms
  • In the United States and Argentina, surrogacy requests are decided by independent surrogacy committees.
  • In the United Kingdom, Denmark, South Africa, Australia, Canada and Greece, only altruistic surrogacy is allowed.

Conclusion:

The Surrogacy (Regulation) Bill 2019 strengthens the ban on commercial surrogacy, but it does not resolve the wider social, physical, psychological, emotional and economic concerns that continue to threaten the health and protection of both the surrogate mother and the kid. Removing the economic elements of the new surrogacy agreements alone does not reduce the risks of abuse. The rights of surrogate mother and child born must therefore be comprehensively developed, along with which ART must be thoroughly regulated.

Mains oriented question:

What are the reason of commercial surrogacy happening in India at high scale instead of being ban? What the reason for women from middle and lower middle class are going for commercial surrogacy? (250 words)