Planning a surrogacy in India? A glance at the newly passed bill

The Union Cabinet of India recently approved the Surrogacy (Regulatory) Bill, 2016 which will be introduced in the next session of the Parliament. The bill has put a ban on commercial surrogacy in India.

Why did the need for such a Bill arise?

In 2012, a Japanese couple got divorced before their surrogate child was delivered by an Indian mother. In another incident, an Australian couple arbitrarily chose one of the twins delivered by the surrogate while abandoning the other. Israel refused to grant nationality to a child born from surrogacy in India. Domestically, Indian celebrities have used surrogacy for having a third child after having two biological children or just for the sake of convenience.

This bill is the government’s effort to allow surrogacy only where necessary. It aims at prohibiting potential exploitation of the surrogate mothers especially rural and tribal women. It promises to ensure that the parentage of children born from surrogacy is legal and transparent.

Key points of the Bill.

  1. Only Indian couples who are childless and heterosexual and have been legally married for at least 5 years can opt for surrogacy provided one of them has medically certified fertility issues. The age of the female should be between 23-50 years and the male between 26-55 years. A couple can have only one child from surrogacy.
  2. Foreigners, Non-Resident Indians, Overseas citizen of India card holders, single parents, unmarried couples, live-in partners and homosexuals cannot commission surrogacy in India.
  3. The surrogate mother should be married, have a healthy child of her own, should be a close relative (not necessarily a blood relative) of the commissioning couple and should do it for altruistic reasons. A woman can be a surrogate only once in her lifetime.
  4. The surrogate child will have the same rights as that of a biological child.
  5. Assisted Reproductive Technology (ART) Clinics will have to be registered and maintain records of surrogacy for at least 25 years.
  6. Any violation i.e. commercial surrogacy, exploitation of the surrogate mother, selling/import of embryo, abandoning the surrogate child will be punishable by a jail term of at least 10 years and a fine of upto 10 lakh.
  7. Surrogacy regulation board will be set up at both Central and State-level.

What are the pitfalls of this bill?

  1. It will result in a sharp decline in revenue from surrogacy, IVF and related services from international patients. For international patients India has been a surrogacy destination for several reasons like affordability, convenience and quality of doctors. A 2012 report deems it to be a $400 million industry.
  2. Surrogacy is the last resort adopted by infertile couples who dream of having a child with genetic link. This bill will add to their woes as finding a surrogate who will do it for empathy is unlikely, confidentiality will be an issue as the deal will be within the family and there is a chance that the biological mother and child may form a bond in the future. Also the oppressed women in the family will be forced to be surrogates.
  3. Surrogacy fetches much more money for women willing to rent their wombs than they can ever earn from their daily wages which makes education of children, a house and livelihood affordable for them. These women in a way are asserting their rights over their wombs. This bill violates a woman’s fundamental right to livelihood. The gap between demand and supply will lead to the rise of a black market, thereby further victimization and exploitation of these poor women.
  4. This bill is reflective of patriarchal Indian mindset that a woman if fertile should bear a child herself, it reinforces traditional values by making marriage a prerequisite, also hints that the government is not open to accepting homosexuality and equal rights for all.

The way forward

There should be regulatory laws for proper contracts, insurance, healthy pregnancies and registration of surrogates; DNA tests, elimination of middlemen; nationality, rights, abandonment and abuse of surrogate children rather than a ban which will kill surrogacy in India.

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