The Union Cabinet recently approved the Surrogacy (Regulation) Bill, 2020, allowing a willing woman to be a surrogate mother. The Cabinet approved the Surrogacy (Regulation) Bill after incorporating the recommendations of a Rajya Sabha Select Committee.
Surrogacy in India: Quick Read
- Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child's parent(s) after birth.
- Commercial surrogacy was legalized in 2002 to promote “medical tourism”. This has led to the mushrooming of over 3000 clinics in India.
- According to the Indian Council of Medical Research (ICMR) around 2,000-odd babies per year through commercial surrogacy when a woman is paid an agreed sum for renting her womb.
- CII figures say surrogacy is a $2.3-billion industry fed by a lack of regulations and poverty.
Provisions of the Surrogacy (Regulation) Bill
It was first mooted in 2016 in the wake of repeated reports of exploitation of women as they repeatedly become surrogate mothers to supplement the family income. The Bill has already been scrutinized once earlier by the Standing Committee on Health and Family Welfare.
- Ban of commercial surrogacy
- Intending couples should not abandon such a child under any condition.
- Only Indian couples, legally married for at least 5 years allowed to opt for surrogacy, it excludes live-in partners and single parents
- It seeks to allow ethical altruistic surrogacy to intend infertile Indian married couple
- Age criteria: 23-50 years for female, 26-55 years for a male.
- Mandatory for the couple to obtain a certificate of essentiality and certificate of eligibility.
- The surrogate mother must be a close relative of the intended couple and must be between 25-35 years.
- Surrogate must be a married woman having a child of her own.
- She should not have been a surrogate earlier and must be good sounded mentally and physically.
- A woman can act as a surrogate mother only once.
- The child born out of surrogacy to be the biological child of the intending couple.
- The newborn child shall be entitled to all rights and privileges available to a natural child.
- Setting up of National Surrogacy Board at the national level, State Surrogacy Boards at the state level, Appropriate authorities in states /UTs
- Registration of surrogacy clinics under appropriate authority is mandatory.
- It also specifies that the selection of sex-specific surrogacy can not be done.
Changes suggested by Select Committee
- Any willing women in place of close relatives: The close relative's clause should be removed, and any willing woman should be allowed to become a surrogate mother provided all other requirements are met and the appropriate authority has cleared the surrogacy.
- No to commercial surrogacy: It has strongly backed the ban on commercial surrogacy.
- For divorced and widowed women: The committee recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent.
- Waiving five-year waiting period: The need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive.
- PIO can avail benefits: It has recommended that persons of Indian origin should be allowed to avail surrogacy services.
- Expanding the definition of commissioning parents: The committee has not recommended expanding the definition of commissioning parents to include singles, either men or women. This means people from the entertainment industry, would still not qualify for using the surrogacy route for children.
- Increasing insurance cover for the surrogate mother from the 16 months proposed in the Bill to 36 months.
- Deleting the definition of infertility: The definition of infertility in the bill is the inability to conceive after five years of unprotected intercourse. The select committee recommended deleting the definition on grounds that it was too long a period for a couple to wait for a child.
- Protect the interests of the child: Committee recommended that the order regarding the parentage and custody of the child, issued by a Magistrate, shall be the birth affidavit for the surrogate child.
- The ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy (Regulation) Bill, 2019, so that all the highly technical and medical aspects could be properly addressed in the Surrogacy (Regulation) Bill, 2019.
The ART Bill
Surrogacy is a part and parcel of Assisted Reproductive Technology (ART) and hence the Surrogacy Bill should come into force only after the enactment of ART Bill.
The Assisted Reproductive Technology (Regulation) Bill has been in the making since 2008.
- It aims to regulate the field through registration of all IVF clinics and sperm banks, segregation of ART clinics and gamete banks, etc.
- It also requires national and state boards to be established for the purpose of regulation of the fertility market.
The recently approved bill will not only benefit widows and divorced women but also infertile Indian couples.