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02 Sep 2016

Proposed Surrogacy Bill, 2016: targeting unethical facets of “rent-a-womb”

By: Divya Chandrasekaran
 Litigation   Add a comment

The Cabinet’s nod to the Surrogacy (Regulation) Bill, 2016 on 24th August 2016[1] is undoubtedly a remarkable initiative to bring more clarity to the grey area of surrogacy regulation in India. However, it has raised many issues and concerns. India, where commercial surrogacy has been legal for more than a decade, has become an attractive worldwide hub for commercial surrogacy, and has led to various issues and unethical practices such as coerced and forced surrogacy, exploitation of surrogate mothers, abandonment of surrogate babies, importing human embryos and gametes etc. This situation created a pressing need for better regulation of surrogacy in India.

The 228th report of the Law Commission of India[2] had recommended prohibition of commercial surrogacy and allowing ethical altruistic surrogacy to needy Indian citizens. Consequent to this report and extensive discussions, the initial scope of the Assisted Reproductive Technology Bill (ART) that sought to restrict ART services in India, was narrowed down to deal with only surrogacy under the new Bill titled the Surrogacy (Regulation) Bill 2016. A prominent proposal under the Bill is the setting up of Surrogacy Regulation Boards at the Central and State level and mandatory registration of surrogacy clinics.

The Bill primarily focuses on regulating surrogacy services in India and curbing unethical practices such as exploitation of women and children born out of surrogacy. It proposes to impose a ban on commercial surrogacy, including sale and purchase of human embryo and gametes. By prohibiting foreigners, NRIs, homosexual couples, people in live-in relationships, and single individuals from opting for surrogacy, the Bill allows ethical surrogacy only for childless married couples. The Bill specifies that to seek surrogate parenthood, such couples should have been married for at least 5 years and should produce a medical certificate to the effect that either partner is medically unfit to produce children.

The Surrogacy (Regulation) Bill, 2016 allows only a “close relative” to be a surrogate mother and the said “close relative” shall not be paid anything in addition to the medical expenses and Insurance. Yet another check to curb commercialization of surrogacy and rent-the-womb practice is that the Bill confines a woman to be a surrogate mother only once in her lifetime and for an “altruistic purpose”.

The much needed surrogacy bill has certain pros and cons that are being debated widely. If the Bill is passed in its current form, one such concern is that a couple with no “close relative” would be deprived of the opportunity of surrogacy, as the Bill restricts surrogacy only to a “close relative”, and prevents the couple from reaching out to a third person even if she is interested in being a surrogate mother. There is also a view that the current form of the Bill is in violation of a surrogate mother’s reproductive right. Also, by banning egg donation, a substantial number of couples would be prevented from undergoing IVF treatment in India.

The Bill prohibits live-in couples and single individuals from choosing surrogacy. Live-in relationships have gained legal acceptance in India and it would not be just to prohibit such couples from surrogacy merely because there is no legal wedding. Given that marriages are legally allowed to be broken by divorce, denying people in live-in relationships the right to opt for surrogacy has also attracted sharp criticism. In the case of single individuals too, although they are allowed to legally adopt children, they are prohibited from having their own child through the surrogacy route. These are some of the points that require serious debate and consideration before the Bill is passed.

In a nutshell, the surrogacy Bill targets elimination of the so called unethical practice of “rent-the-womb-for-money” in India, thereby enhancing protection to women and children against abuse or abandonment in the name of surrogacy.

[1] http://pib.nic.in/newsite/PrintRelease.aspx?relid=149186

[2] http://lawcommissionofindia.nic.in/reports/report228.pdf

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