Surrogacy (Regulation) Bill 2020

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The Rajya Sabha passed both the Assisted Reproductive Technology (Regulation) Bill, 2021 as well as the Surrogacy (Regulation) Bill, 2020.

Objectives and Need of the bill

• Curb unethical practices: Both the Bills seek to curb unethical practices related to issues of sex selection and exploitation of the surrogate.
• Regulation: Couples would arrive in India, and buy wombs and take children back. Thus, it has become more than imperative to regulate both assisted reproductive technology (ART) and surrogacy in the country.
• To curb the exploitation of women: In 2014, a 26-year-old woman died owing to complications during egg retrieval. Under the ART, ovaries are stimulated for eggs to be extracted. This is a highly technical procedure which needs to be regulated.
  • Unmarried women sell their wombs to tide over financial crises. This should not happen.
  • Ex – There has been a case in Andhra where a 74-year-old woman gave birth to twins. How will such an old person bring up their children? It is physically unhealthy and ethically wrong.
• To curb sex selection: there are unregulated IVF centres all over the country and with unregulated surrogacy taking place sex selection was happening in both ways.
• To stop reproductive medical tourism: India has become a centre of the global fertility industry, with reproductive medical tourism seeing a huge rise. 

Major Highlights of the Bill

• Definition :The Surrogacy (Regulation) Bill relates to surrogacy, an infertility treatment, where a third person, a woman, is the surrogate mother.
  • The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.
  • Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
    • The bill allows a woman to become a surrogate only once  and it allows any willing woman to act as a surrogate, and also lets widows and divorcees to opt for surrogacy to have children.
      • Now, single men and women in India can no longer become parents through surrogacy.
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.It includes:
  • A certificate of proven infertility of one or both members of the intending couple from a District Medical Board
  • The couple were Indian citizens and married for at least five years.
  • The Bill proposes that only infertile Indian married couples between the ages of 23-50 for women, and 26-55 for men would be considered for surrogacy.
• Insurance: In cases of surrogacy, the government has made it mandatory to provide insurance for 36 months, so that any post-birth complications or physical and mental health issues could be taken care of.
• Penalties: have also been prescribed so as to curb exploitation.
  • For unethical practices, a penalty of Rs 5-10 lakh will be levied on a first-time offender.
  • A fine of Rs 10-20 lakh or imprisonment of eight years has been prescribed for a repeat offender.
• Limitations: Surrogacy is allowed for only Indian married couples.
  • A 2015 notification prohibits commissioning of surrogacy in India by foreigners or OCI or PIO cardholders, but NRIs holding Indian citizenship can avail surrogacy.
• National Surrogacy Board: Under the Surrogacy Bill, there will be a National Surrogacy Board that will be involved in policy making, and act as a supervisory body, and State Boards that will act as executive bodies.
• Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
  • Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
• Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. 
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.

Issues and Criticism of Bill 

• Exploitation: The ban on commercial surrogacy is an attempt to curb exploitation, but in fact we are curtailing the rights of woman surrogates by removing the commercial component.
  • Is she meant to provide these services free of cost, by saying that the surrogate has to be a close relative we exploit her further.
• Violence faced by women at home: Women come under excessive pressure even for conventional pregnancies, what is the guarantee that they will not be forced to become surrogates by their families. The Bill doesn’t take into account the violence faced by women at home.
• Violation of their fundamental right: The Supreme Court has said that the right to reproduce is a fundamental right in the 2016 judgement in Devika Biswas vs Union of India case.
  • Restricting the Bills to heterosexual couples is in contravention to this.
  • ICMR guidelines allow single mothers to benefit from ART but this is missing in both Bills.
• Takes away women’s reproductive choice: Some argue that the law takes away from the right of women to make their own reproductive choices and the right of persons to parenthood.

Way forward

• Postpartum depression and maternal benefits: Government must take into account postpartum depression and make provisions for it, and that maternal benefits should be extended to both mothers.
• Rescinding the time-frame: Government should consider rescinding the time-frame of one year (reduced from the earlier proposed five years) stipulated for IVF treatment before allowing people to resort to surrogacy.
  • As many women are medically unfit to have children, and suffer from little-known and undetectable illnesses such as “Tokophobia” or the fear of childbirth.

Source: IE