New Delhi: India is all set to ban commercial surrogacy with the Surrogacy (Regulation) Bill 2016, being cleared by the cabinet for introduction in the winter session of parliament. The proposed law seeks to protect women from exploitation and ensure rights of the child born through surrogacy.
Once approved, there will be a complete ban on commercial surrogacy, but altruistic surrogacy will be permitted for needy infertile couples under strict regulations. The draft law allows only Indian citizens to avail of surrogacy, not foreigners, NRIs or PIOs. And in a provision that reflects the moral conservatism of policymakers – both in the present BJP-led government and the previous Congress-led one – the law discriminates against Indian citizens who are homosexuals, would-be single parents, and live-in couples. Individuals who fall in these categories will be ineligible to avail of surrogacy even if they are infertile. Finally, couples who already have children – biological or adopted – will not be allowed to go in for surrogacy, though they can adopt a child.
With virtually no law governing surrogacy, India, in recent years has emerged as a surrogacy hub for couples from different countries. There have been incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes as there is no real legal framework in place. There are about 2000 surrogacy clinics spread across the country. Several celebrities including Shah Rukh Khan and Tushar Kapoor have gone for surrogacy recently.
“Surrogacy is not a fashion or a hobby, but we have surrogacy as a celebrity culture,” said external affairs minister, Sushma Swaraj, who headed the group of ministers that looked into Bill and was fielded to explain its salient features to the media on Wednesday.
She brushed aside questions reporters asked about the exclusion of homosexuals from the law’s purview by saying “this is against our ethos”.
The draft law will allow surrogacy only for “legally married couples (man and woman)”after five years of marriage and with a certificate from a doctor saying that they are medically unfit to produce a child. Women within the age group of 23 years to 50 years and men aged between 26 to 55 years will be eligible to go in for surrogacy.
In an attempt to stamp out commercial exploitation and middlemen, the surrogate mother can only be a close relative, like a sister or sister-in-law who is married and has at least one healthy biological child. Even mothers can become surrogates for their children. A woman can be a surrogate only once in her lifetime. She will have to be medically insured. The commissioning parents will have to accept the child or children born to a surrogate mother irrespective of their number (twins or more), or their physical and mental condition. The child will have all the rights, including those of inheritance, as a biological child. “There will be no exchange of money between the prospective parents and the surrogate mother. The only expenses would be that of medical bills which will be paid to the clinic,’’ the minister said.
There have been instances of parents abandoning girls and mentally or physically disabled children or even taking one child if there were twins. Vulnerable women from poor families are lured to become surrogates for money, though it is the middleman or the surrogacy clinics which makes the most out of the process.
“I wonder why surrogacy has been linked to marriage,’’ N. Sarojini of Sama wanted to know. “My concern is on the implementation of the law. It should not lead to black-marketing or share the same fate as the Pre-Conception and Post-Natal Diagnostic Technique Act where the authorities hardly ever meet ,’’ she told The Wire.
Proposing a hefty penalty of imprisonment of not less than 10 years and a Rs 10 lakh fine for violating the provisions of the law, the Bill also requires all surrogacy clinics to be registered. The records of the child born through surrogacy will have to be maintained for 25 years just in case he/she wants to go through the records as an adult.
The Bill will regulate surrogacy in India by establishing a National Surrogacy Board at the central level and state surrogacy boards and appropriate authorities in the state and union territories. The Bill shall apply to whole of India, except the state of Jammu and Kashmir. The central surrogacy board will be headed by the union health and family welfare minister, while the secretary department of health research will be its vice chairperson. Three members of parliament will be selected as members of appropriate authorities in addition to a representative from a women’s group among others.
Surrogacy was earlier covered under the Assisted Reproductive Technology Bill, which the government has been trying to finalise for many years now. However, assisted reproductive technology would now be covered under a separate law.
Commercial surrogacy is banned in New Zealand, Australia, Japan, China, Mexico, the UK, Philippines, South Africa, Canada, Netherlands, Spain, Switzerland, Sweden, France, Germany and most European countries. Thailand and Nepal have recently banned commercial surrogacy in the wake of exploitation of women. Commercial surrogacy is allowed in Russia, the Ukraine and California in the US.
The 228th report of the Law Commission of India had recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens by enacting a suitable legislation.
In-vitro fertilization (IVF) expert, Anurag Bishnoi, recently in the news for helping an elderly couple in Amritsar have a child, has cautiously welcomed the draft of the Bill. “The present draft would impact medical tourism in the country. While quite a number of countries in the world including the United Kingdom do not allow surrogacy, particularly commercial surrogacy, those which do allow are governed by stringent guidelines,’’ Bishnoi said in a statement. How exactly the law will be implemented and monitored is unclear, he added.