Surrogacy (Regulation) Bill Of 2020: Balancing Interests

The Author, Sidak Singh Kalra, is a 3rd Year, BBA.LLB, student at Vivekanada Insitute of Professional Studies, GGSIPU,Delhi. He is currently interning with Jasra & Jasra Law Offices.

Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child, she will not raise but hand over to a contracted party.[1] The practice of Surrogacy has been prevalent in India for the last few decades now and has been on a rise ever since it has been introduced. The process of surrogacy involves multiple parties and substantial consideration of their human rights. Therefore, it is imperative that the interests of every party must be balanced harmoniously to prevent any miscarriage of justice.

The provision of surrogacy, introduced as a scientific feat enabling couples to have a child of their own, is now being abused by many for their personal gain at the expense of the rights of surrogate mothers and surrogate children. There have been reported incidents of unethical practices in the process of surrogacy, death of surrogate mothers,[2] exploitation of surrogate mothers, abandonment of children born out of surrogacy,[3] import of human embryos and gametes. The reason such exploitation bloomed in India is regulatory ambiguity caused by the lack of proper legislation for surrogacy. Due to lack of a proper legislation on the matter, India has also emerged as a surrogacy hub globally and this scenario has given rise to various socio-ethical issues.[4]

In an attempt to counter this widespread exploitation, The Surrogacy (Regulation) Bill, 2019[5] was passed by the Lok Sabha on 5th August 2019, and then it was referred to The Select Committee, comprising of 23 Members of Rajya Sabha on a Motion adopted by the House on the 21st November 2019 for examination of the Bill and report thereon. The Select Committee prepared a report[6] and drafted The Surrogacy (Regulation) Bill, 2020 which was subsequently approved by the Union Cabinet on 26^th February 2020, according to a statement made by Union Minister, Mr. Prakash Javadekar in a press conference which now awaits the passing of the bill in Rajya Sabha before it receives presidential assent and serves its purpose. Some major features of the proposed legislation are:

• Establishment of Regulatory Bodies: The bill proposes to regulate surrogacy by establishing National Surrogacy Board at the central level,[7] the State Surrogacy Board at the state level[8] and one or more appropriate authorities for each of the Union territories.[9] The National Surrogacy Board has been entrusted with a wide range of functions and roles, with emphasis on (i) the advisory role of the board on policy matters relating to surrogacy[10], (ii) the supervisory role of the board over various bodies constituted under the bill[11] and the State Surrogacy Boards[12], (iii) the administrative role of the board, entrusting it with the function to lay down the Code of a conduct to be observed by persons working at surrogacy clinics[13] and to set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics.[14]
• Ban on commercial surrogacy: The Law Commission of India had recommended for prohibition of commercial Surrogacy by enacting a suitable legislation in its 228th Report. In pursuance of which, the new bill has duly introduced a statutory blanket ban on commercial surrogacy[15] (defined u/s 2(f) of the 2020 bill) and permits only altruistic surrogacy[16] in order to quash the booming industry of rent-a-womb and prevent exploitation of surrogate mothers. A ban on commercial surrogacy can also be construed to mean a ban on fashion surrogacy, where there is no medical necessity but a matter of convenience. Countries like Australia, New Zealand, the United Kingdom, Canada, Netherlands, South Africa, etc. also follow the same.
• Omission of the definition of infertility: The Surrogacy (Regulation) Bill 2019 required at least one member of the intending couple to be suffering from ‘proven infertility’ in order for them to be eligible for the process of surrogacy.[17] In the 2019 bill, infertility was defined as “the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception”[18]. The Select Committee, after a discussion on the issue, opined that five years is an unreasonably long waiting period for couples who wish to opt for surrogacy, particularly in certain medical conditions like absent or abnormal uterus, irreversible damage or destruction of uterus, removal of uterus due to cancer, fibroids, etc. or where it has been medically proven beyond any doubt that surrogacy is the only option left with the couple if they wish to have a child of their own.[19] As a consequence, the definition of Infertility u/s 2(p) of The Surrogacy (Regulation) Bill 2019 was omitted and Section 4(a) of the 2019 bill was amended to read “when an intending couple has a medical indication necessitating gestational surrogacy” as the condition precedent in the 2020 bill.
• Widened ambit of the Act: The 2019 bill enabled only married Indian couples to opt for the process of surrogacy[20] but the 2020 bill has widened the ambit of the legislation by also permitting an “intending woman” i.e. an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy,[21] to opt for surrogacy.[22] The ambit of a surrogate mother was also earlier restricted to a vague and undefined term “close relative”[23] which potentially restricts the availability of surrogate mother and will cause difficulty to those in genuine need. Therefore, the section was amended to say “a willing woman” which further widens the ambit for the intending couples or intending woman to find a surrogate mother.^[24]

It is apparent prima facie that this new bill is well thought and has duly taken into consideration the best interests of every party, especially the long due interests of a surrogate mother. Under the 2020 bill, a surrogate mother has been vested with rights throughout the process of surrogacy, duties have been imposed on the “intending couple” or “intending woman”, and stringent penal provisions have been provided to deter any potential violators.[25] Moreover, regulatory bodies comprising of experts in fields of medicine, social sciences along with representatives of women welfare organizations and civil society for women’s health and child issues have been assigned to ensure all the safeguards are actively implemented.[26] It has been specifically provided that no woman shall act as a surrogate mother by providing her own gametes,^[27] that no woman shall act as a surrogate mother more than once in her lifetime^[28], that a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner shall be mandatory for a surrogate mother and that no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte.^[29] Under the 2020 bill, a surrogate mother is also entitled to an insurance coverage for a period of thirty-six months covering postpartum delivery complications[30] which include medical expenses, health issues, specified loss, damage, illness or death of the surrogate mother and other prescribed expenses incurred on surrogate mother during the process of surrogacy[31].

In addition to the rights of the surrogate mother, the proposed legislation has given significant importance to the rights of a surrogate child, as earlier reflected by the Gujarat High Court in Jan Balaz v Anand Municipality.[32] Under the proposed legislation, a child born out of surrogacy procedure shall be deemed to be a biological child of the “intending couple” or “intending woman” and the surrogate child shall be entitled to all the rights and privileges available to a natural child.^[33] There is also a prohibition on giving birth to a surrogate child for purposes of sale, prostitution, or any other form of exploitation[34] or abandon or disown or exploit or cause to be abandoned, disowned or exploited in any form, the child or children born through surrogacy,[35] exploit or cause to be exploited the surrogate mother or the child born through surrogacy in any manner[36] and stringent penalties have been provided to deter potential violators.[37]

In conclusion, the proposed legislation is a unique blend of social, moral, ethical, legal and scientific issues and is an effective attempt to harmonize the conflicting interests inherent in the process of surrogacy to ensure the betterment of child whilst also protecting the rights of the surrogate mother and the commissioning parents. This legislation will clear the legal ambiguity in the process of surrogacy and collateral issues like citizenship. The stringent penalties under the proposed legislation will act as a deterrent for potential violators and ensure that all the parties go through the process in a fair and reasonable manner. However, it would be prudent to pass Assisted Reproductive Technology (ART) Regulation Bill, 2020 before The Surrogacy (Regulation) Bill, 2020 is passed, as it would help in establishing a regulatory mechanism for ART clinics as a whole and in regulating processes like surrogacy and abortion in a better manner.

References: