A divisive global issue is surrogacy, the practice in which a woman carries and gives birth to a child on behalf of another. The need for regulation became urgent in India because of the unchecked growth of the commercial surrogacy industry. In order to address this issue, the Surrogacy (Regulation) Bill was introduced, which discusses the main points, ramifications, and arguments surrounding its provisions.
Background of Surrogacy in India
In the early 2000s, India became a center for commercial surrogacy, drawing intended parents from all over the world. Lack of strict regulations created an environment where the advantages were frequently outweighed by ethical issues and the exploitation of underprivileged women. Significant problems were brought about by the ambiguity of the law, such as child abandonment, surrogate mother exploitation, and legal disputes over parental rights.
Acknowledging these difficulties, the Indian government put forth the Surrogacy (Regulation) Bill to oversee and control surrogacy agreements, with the goal of safeguarding the welfare of surrogate mothers and surrogate mothers’ rights.
Key Provisions of the Surrogacy (Regulation) Bill
After being first proposed in 2016 and approved by the Lok Sabha in 2019, the Surrogacy (Regulation) Bill underwent extensive revisions before being approved by the Rajya Sabha in 2021. With an emphasis on safeguarding the rights of all parties concerned and avoiding the commercialization of surrogacy, the bill aims to impose stringent regulations on surrogacy practices in India.
1. Definition and Scope: According to the bill, surrogacy is the process by which a woman conceives and gives birth to a child on behalf of a planned couple with the intention of giving the child back after the child is born. It divides surrogacy into two categories:
Altruistic surrogacy: Surrogacy in which the surrogate mother only gets insurance and medical costs in exchange for her services.
Commercial surrogacy: It is the practice of using surrogates in exchange for financial gain, which the law expressly forbids.
2. Qualifications for Becoming a Surrogate:
Intending Couples: Only Indian couples with a certificate of proven infertility and a minimum of five years of marriage are eligible to use surrogacy under the new law. The husband and wife must be between the ages of 26 and 55. The wife must be between the ages of 23 and 50.
Surrogate Mothers: The surrogate must be married, have a child of her own, and be a close relative of the intended couple. She is only eligible to serve as a surrogate once in her lifetime.
3. Regulation of Surrogacy Clinics:
- The bill mandates the establishment of National and State Surrogacy Boards to regulate and monitor surrogacy practices. Only surrogacy clinics registered with the appropriate authority can undertake surrogacy procedures.
- Clinics are required to maintain records of surrogacy procedures for at least 25 years and are subject to regular inspections.
4. Disallowances Under the bill:
The bill outlaws the use of surrogate mothers for commercial purposes, as well as the promotion of surrogacy services. Additionally, it outlaws surrogacy for foreign nationals, single parents, homosexual couples, and people who already have children, whether biological or adopted.
Protection of Surrogate Mothers:
- Surrogate mothers are granted several protections under the bill, including the right to withdraw from the surrogacy arrangement before embryo implantation. The intending couple is required to provide insurance coverage for the surrogate mother for a period extending beyond the pregnancy.
6. Offenses and Penalties:
- The bill prescribes stringent penalties for violations, including imprisonment for up to ten years and fines up to ten lakh rupees for offenses such as undertaking or advertising commercial surrogacy.
Implications and Criticisms
The Surrogacy (Regulation) Bill, while a significant step towards regulating surrogacy in India, has been met with both praise and criticism.
1. Protection of Surrogate Mothers:
- Proponents of the bill argue that it offers necessary protection to surrogate mothers, many of whom have been exploited in the past. By banning commercial surrogacy and allowing only altruistic surrogacy among close relatives, the bill aims to eliminate the commercialization of women’s bodies and ensure that surrogacy is conducted in a humane and ethical manner.
2. Impact on Infertile Couples:
- Critics, however, point out that the bill’s restrictive eligibility criteria may deny many infertile couples the opportunity to have children through surrogacy. The requirement that surrogacy can only be altruistic and performed by a close relative may be impractical for many couples, particularly those who do not have willing relatives to act as surrogates.
3. Concerns Over the Ban on Commercial Surrogacy:
- The outright ban on commercial surrogacy has been a major point of contention. Critics argue that instead of banning it, the government could have regulated commercial surrogacy to prevent exploitation while allowing it under strict conditions. They contend that the ban may drive surrogacy underground, making it even more difficult to monitor and regulate.
4. Exclusion of Certain Groups:
- The bill’s exclusion of single parents, homosexual couples, and foreigners has also been criticized as discriminatory. In an era where different family structures are becoming increasingly recognized and accepted, these exclusions have been viewed as regressive and out of step with modern societal values.
5. Legal and Ethical Debates:
- The bill raises significant ethical and legal debates about the nature of surrogacy, the rights of surrogate mothers, and the best interests of the child. The balance between protecting vulnerable women from exploitation and providing infertile couples with a chance to have a family is a delicate one, and opinions on where this balance should lie vary widely.
Conclusion
The Surrogacy (Regulation) Bill represents a crucial attempt by the Indian government to regulate a practice that has long operated in a legal grey area. By focusing on the protection of surrogate mothers and the ethical conduct of surrogacy arrangements, the bill aims to curb the commercialization and exploitation that had become prevalent in the industry. However, the restrictive nature of the bill has sparked significant debate, highlighting the complex ethical, legal, and social issues surrounding surrogacy.
As India moves forward with the implementation of this law, it remains to be seen how these regulations will impact the surrogacy landscape. The success of the bill will depend not only on its enforcement but also on its ability to adapt to the evolving needs and rights of all parties involved in surrogacy arrangements.
Contributed by: Sahdev Sharma(intern)