- December 24, 2018, 5:25 pm
The Surrogacy (Regulation) Bill was passed by the Lok Sabha, two years after it was introduced in Parliament’s lower House. The bill bars commercial surrogacy and allows only close relatives to act as surrogates to infertile couples for “altruistic” reasons. In doing so, the bill sticks to its original principles despite the criticisms by scholars, women’s rights groups as well as the Union Ministry of Health and Family Welfare’s Parliamentary Standing Committee.
ALTRUISTIC SURROGACY: Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive monetary compensation. In most altruistic surrogacy agreements, the surrogate is a close relation to the intended parents (family member/close friend).
HIGHLIGHTS OF THE BILL
- Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.
- The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. The surrogate mother has to be a close relative who has been married and has had a child of her own.
- No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.
- Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. These authorities will also regulate surrogacy clinics.
- Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.
ANALYSIS OF THE BILL
- The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
- The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. Further, it allows additional conditions to be prescribed by regulations. This may be excessive delegation of legislative powers.
- The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify a time limit within which such certificates will be granted. It also does not specify an appeal process in case the application is rejected.
- The surrogate mother must be a ‘close relative’ of the intending couple. The Bill does not define the term ‘close relative’. Further, the surrogate mother (close relative) may donate her own egg for the pregnancy. This may lead to negative health consequences for the surrogate baby.
- For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending couple has no say in the consent to abort.
By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a murky turn. Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into. In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
The push towards adoption is very welcome, as is the waiting period of five years. The popularity of IVF and other assisted reproductive technologies stems from a problematic conceptualisation of infertility itself, pushing couples to opt for invasive intervention within a year of unprotected coitus. Of importance now is to go back to understanding why and how the desire for children is socially mediated to help couples seeking surrogates, and vice versa.