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This Monday, August 5, 2019, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2019 (Bill No. 156-C of 2019) and was introduced to the Rajya Sabha, restricting surrogacy to being only altruistic and banning its commercial form. The Bill extends to all of India except Jammu and Kashmir.

Introduced by Minister of Health and Family Welfare, Dr. Harsh Vardhan in July 2019, he stated that, “It is the need of the hour,” to mitigate the many “reports concerning unethical practices, abandonment of children born out of surrogacy and exploitation of surrogate mothers.”  

Image source: The Hindu

The Bill defines surrogacy as a practice in which a woman gives birth with the intention of ‘handing over’ the child to an intending couple after its birth. The child born out of surrogacy is stated to be deemed the biological child of the intending couple and be entitled to all the rights and privileges available to a natural child. 

Commercial surrogacy involves selling, buying, or trading services with the surrogate, by way of monetary incentive or remuneration in cash or kind. In contrast, altruistic surrogacy involves no provision of monetary remuneration or incentive, except for medical expenses and 16 months insurance coverage for the surrogate mother.

The pernicious nature of the Bill is evident by its prohibition of live-in partners, same-sex couples, foreigners, and single-parents from using surrogacy services.  

The Surrogacy (Regulation) Bill defines a couple as a legally married man and woman who must (list not exhaustive): 

  • Be married for at least 5 years,
  • Be Indian citizens (and thus may not be foreigners, NRIs [non-resident Indians], or PIOs [persons of Indian origin]),
  • Be within the age group of 23-50 and 26-55 for females and males, respectively,
  • Have no surviving children by either biological means or by adoption or previous surrogacy,
  • Submit proof of infertility on the part of one of both partners  

Additionally, a surrogate:

  • Will be restricted to having only one surrogacy,
  • Must be aged 25-35 years,
  • And must be a close relative of the couple

Support of the Bill

Some elements of the Surrogacy (Regulation) Bill may be argued to be positive and protective. For instance, it underlines that the intending couple must not “abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like.

The Bill outlines stipulations for any person, organization, surrogacy clinic, laboratory or clinical establishment of any kind, including that they may not exploit the surrogate mother or child in any manner or conduct sex selection, among others.

Also read: A Critical Analysis Of The Surrogacy Regulation Bill 2016

Some women’s rights activists, like Manasi Mishra, head of the research division at the Centre for Social Research (CSR) in New Delhi have supported the Bill’s passage: “We welcome the passage of the Surrogacy (Regulation) Bill in the Lok Sabha today. It is based on the findings and policy recommendations of two research studies and one national-level, multi-stakeholder consultation conducted by CSR against commercial surrogacy and for formulation of a National Regulatory Board.

The Bill outlines stipulations for any person, organization, surrogacy clinic, laboratory or clinical establishment of any kind, including that they may not exploit the surrogate mother or child in any manner or conduct sex selection, among others.

Critique of the Bill

While possible constructive qualities may be argued, many highlight the harmful shortcomings of Bill 156-C for its discriminatory and autonomy-impeding provisions. Kakoli Ghosh Dastidar, of the All India Trinamool Congress offered an argument in 2018 of the Bill’s neglect to acknowledge same-sex couples, despite the Supreme Court having legitimising these relationships. The pernicious nature of the Bill is evident by its prohibition of live-in partners, same-sex couples, foreigners, and single-parents from using surrogacy services.  

Finally, the Bill has been vehemently contested by gynaecologists. Mumbai-based gynaecologist, Dr. Duru Shah, challenged that banning commercial surrogacy and advancing altruistic surrogacy has the potential to impose unwarranted pressure on women who might not have the ability to negotiate becoming surrogates. “If a daughter-in-law is forced to become a surrogate for the daughter in the family, and she may not be able to say no, this leads to exploitation,” said Shah.

Surrogates can earn anywhere from 4 to 12 lakh rupees (USD $5,628 to $16,885) per birth. Fertility expert Dr. Nayana Patel stated, “In my experience, the livelihoods of at least 80-95% of surrogate mothers have vastly improved because of this option.” Vandana, a 32-year-old woman from Gujarat said that it provides her an annual income many times that of her income as a domestic worker. She says, “My husband and family are happy as it brings [in] substantial money. I’ve even recommended my other family members to take up this option. Plus, I’m quite happy that I [can] lend a hand to someone to complete their own family.”

For women like Vandana, a 32-year-old from Gujarat with two children of her own, surrogacy provides an annual income several times that of what she earned as a domestic worker.
Photo: South China Morning Post

While the Surrogacy (Regulation) Bill, 2019 is still up for passage in the Upper House, it has elicited numerous contentions over the years and elucidates various ethical dilemmas and what form of surrogacy may provide or hinder autonomy and or protection for potential surrogates.

Also read: Surrogacy In India And The Debates Surrounding The Practice


Featured Image Source: Live Mint

1 COMMENT

  1. Unmarried Man or women must not be permitted to have a Child via Surrogacy .when this Child goes to School he or she Wonders why other Kids parente come for PTA .& his does not.etc Thanks for this Law being implemented ,better late than never .

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