The word surrogate, is derived from Latin word subrÅgare (means to substitute), or appointed to act in the place of. 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. India has become a procreation destination due to easy laws, cost effectiveness, because of which an overwhelming no. of couples choose India as their surrogacy destination. In 2008, the Supreme Court of India has held that commercial surrogacy is permitted in India 1 .Commercial surrogacy has been legalised since 2002 in India.
There are 4 types of surrogacy :
i.) TRADITIONAL SURROGACY : It is done via artificial insemination, with thesurrogate using her egg and another man’s sperm
ii.) GESTATIONAL SURROGACY : It is done via In Vitro Fertilization (IVF), where fertilized eggs from another woman are implanted into the surrogate’s uterus.
iii.) ALTRUISTIC SURROGACY : It Is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child. The surrogate mother can be one of close relative or friend
iv.) COMMERCIAL SURROGACY : It is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who.
HIGHLIGHTS OF THE SURROGACY (REGULATION) BILL 2016
The 228th report of the Law Commission of India has recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting a suitable legislation. The Surrogacy (Regulation) Bill, 2016 was introduced in the Lok Sabha on the 21st day of November 2016 which was referred to the Parliamentary Standing Committee on Health and Family Welfare on the 12th of January 2017. The major highlights of this bill are :
- The intending couple must be married Indian citizens for at least five years with at least one of them being infertile.
- The surrogate mother needs to be a close relative who is married and has a child of her own.
- The surrogate child will be deemed to be the biological child of the intending couple for all purposes. Only reasonable medical expenses need to be paid and no other
- consideration.
- 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.
CRITICAL APPRAISAL OF BILL
- Ban on Commercial Surrogacy: The ban on commercial surrogacy is proposed keeping in mind the probability of exploitation of surrogate mother. It should always be kept in mind that best way to prevent such exploitation is by regulating it rather than prohibiting it. Solely on the probability of exploitation banning seems totally irrational and also serves as an infringement of couples right to reproduction. Further, the enjoyment of benefits of scientific and technological progress and its application is recognized as a human right and is included in the Universal Declaration of Human Rights (Article 27) and the International Covenant on Economic, Social International Covenant on Economic, Social and Cultural Rights(Article 15), etc. Since individuals have right to enjoy the fruits of scientific and technological progress, undoubtedly individuals have right to use such technologies to bear children. Any such ban operates as a violation of right to enjoy scientific and technological progress.
- Restriction for International Surrogacy: Procreative tourism is a practice in which people go abroad for assisted reproductive technology services and have a child through the said process. India has rapidly developed as a destination for procreative tourism. This development directly owes its success to easy cost, efficiency, availability of wider range of services and laxity of legal framework. Hence, limiting surrogacy only to Indian citizens will work against the ethos of international trade relations. Close Relative: The Bill specifies that, only a ‘close relative’ of intended couple can act as a surrogate mother. However, this has not been defined. It is also not always possible to find someone from the family itself who will be ready to act as a surrogate mother. Further, this may cause family problems and psychological problems later as both the mother and child will know about the facts of surrogacy.
- Waiting period of five years: Medical infertility is usually when a couple is not able to conceive even after a year or two of trying to conceive a child through regular sexual intercourse. Thereby there appears no reason to compel the couple to wait for instead 5 long years for availing the surrogacy service.
- Maternity Relief: The Bill remains mute about this issue even after so many High courts of India have actively acknowledged it as a major concern.
- Designer Baby: Bill is also silent about this one of the major criticisms against surrogacy.
- Certificate of Eligibility: The Bill mandates taking of certificate of eligibility from the relevant and competent authorities at the Centre or State level. However,no time limitation for the granting of such certificate is mentioned nor any procedure for appeal or review is available in case of dismissal of such application. .
- Rights of Intended Couples: In a surrogacy practice the following rights of the intended couple have been identified as essential, (a) the right to select surrogate mother of their own choice subject to restrictions by the State on grounds of public . (b) right to impose reasonable restrictions upon surrogate mother as are necessary for the normal development of the child; (c) right to information and visit surrogate mother during pregnancy; (d) right to custody of the child within 72 hours of its… of its birth. However, the Bill does not make any reference about these rights.
CONCLUSION:
The Surrogacy (Regulation) Bill, 2016 presents a regulatory framework for good surrogacy practices in India. However, the proposed proscription on commercial surrogacy and disallowing foreign couples from availing surrogacy services can be one of the biggest limitation of this Bill. More emphasis could have been in regulating the current discriminatory surrogacy practises by structuring the framework that ensures proper and legal construction of surrogacy contracts. Moreover a reviewing authority could have been provided for that would have looked after the surrogacy contracts. This mechanism is popularly known as ‘Vetting of Surrogacy Contracts’. This can be efficiently done by the proposed National Surrogacy Board and State Boards. However, even after such limitations bill proposes a promising future of surrogacy practises in India, that aim to protect the interests of surrogates to the best possible level.
This article is written by
Shipra Sayal of
Nirma University, Ahmedabad
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