Surrogacy Bill AnalysisApprox Read Time: 6 minutes
Infertility is a big issue worldwide:
- Research done by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide were unable to have a child of their own. They suffered from infertility.
- As per WHO, infertility is a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.
Medical advancements to deal with the problem:
- Given the advancements in medical science, couples suffering infertility have been trying different medical solutions to have children.
India as the hub of global fertility industry:
- Over the years, India has become the hub of the global fertility industry, with reproductive medical tourism becoming a significant activity.
- Clinics in India have been offering assisted reproductive technology (ART) services such as gamete donation, intrauterine insemination (IUI), in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), preimplantation genetic diagnosis (PGD), and gestational surrogacy.
- Surrogacy, in particular, has drawn many childless couples to India in the last few decades.
- Surrogacy is an arrangement where a woman (the surrogate) offers to carry a baby through pregnancy on behalf of a couple, and then return the baby to the intended parent(s) once it is born.
Broadly, surrogacy is of two types:
- Traditional surrogacy involves insemination of the surrogate naturally, or artificially, with the semen of the male partner of the childless couple.
- A child born this way is genetically related to the surrogate mother.
- This has several ethical, social and legal implications.
- In the case of gestational surrogacy, an embryo from the ovum and sperm of intended couple is fertilized in a test tube and transferred to the womb of the surrogate.
- A child born through gestational surrogacy has no genetic similarity to the surrogate mother.
Commercial surrogacy in India saw malpractices due to proper legal framework:
- Commercial surrogacy is when women act as surrogates for monetary benefits.
- While many couples benefited from surrogacy facilities in India, the practice has persisted without any legal framework, working only on the basis of vague guidelines.
- Under these circumstances, there have been many reported incidents of unethical practices surrounding surrogacy.
- These practices include the exploitation of surrogate mothers, abandonment of children born out of surrogacy, and the import of human embryos and gametes.
- Many poor women in India took to becoming surrogate mothers repeatedly despite grave implications to their health.
Surrogacy practices across the world:
- In the United States and Argentina, surrogacy requests are decided by independent surrogacy committees.
- In the United Kingdom, Australia etc., only altruistic surrogacy is allowed.
- Commercial surrogacy is legally allowed in countries like Russia, Ukraine, and Thailand.
- In France, Germany etc., surrogacy is banned in all forms.
Push for legal framework to regulate surrogacy:
- In its 228th report presented in 2009, the Law Commission of India recommended that surrogacy be regulated through a suitable legislation.
- The Law Commission recommended the only altruistic surrogacy (where no monetary benefits are involved) be legalized and commercial surrogacy be totally banned.
Surrogacy (Regulation) Bill, 2019:
- The Surrogacy (Regulation) Bill, 2019, was passed by the Lok Sabha in August, 2019.
- The government while introducing Surrogacy (Regulation) Bill said that it is an ethical, moral and social legislation as it protects the exploitation of the surrogate mother and protects the rights of the child born through surrogacy.
- The Rajya Sabha in November, 2019, adopted a motion to refer the bill to a Select Committee.
- The committee studied the best practices in surrogacy globally keeping in mind Indian needs.
Provisions for regulating surrogacy:
- The Bill seeks to constitute a national surrogacy board, state surrogacy boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy.
- To begin with, the couple seeking surrogacy will have to provide compelling condition for wanting a child through surrogacy.
- They have to be Indians, but can also be non-resident Indians (NRIs), persons of Indian origin (PIOs) or overseas citizen of India (OCIs).
- The surrogate needs to be married and have her child as some procedures of surrogacy may lead to infertility.
- Single women cannot opt to have a child through surrogacy, but exceptions have been made for widows and divorced women if they obtain a certificate of recommendations from the National Surrogacy Board.
- An insurance coverage for 16 months is proposed for the surrogate mother to take care of all her medical needs in the case of emergency conditions/complications.
- Surrogacy clinics cannot undertake surrogacy-related procedures unless they are registered with the appropriate authority.
- Surrogacy is a blessing for many childless couples.
- The Surrogacy (Regulation) Bill, 2019 tries to ensure that childless couples benefit from surrogacy while protecting the surrogate mother and the children born out of surrogacy.