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The Surrogacy (Regulation) Bill, 2019

The Surrogacy (Regulation) Bill, 2019 was presented in Lok Sabha by the Ministry of Health and Family Welfare as of 15 July 2019. The bill states that the Surrogacy as a practice where a female gives birth to a child for an intending couple with the purpose to hand over the child after the birth to the aspiring couple.

Characteristics of the Bill

Regulation of the surrogacy The Bill doesn’t allow commercial surrogacy, but permits philanthropic surrogacy. Altruistic/ Philanthropic surrogacy doesn’t involve monetary compensation to the surrogate mother other than the insurance coverage and medical expenses during the pregnancy.
Purposes for which surrogacy is allowed Surrogacy is allowed when it is:
  • for aspiring couples who suffer from proven infertility;
  • for altruistic purpose and forbid for commercial purposes;
  • not for giving birth to a child for prostitution, sale, or other forms of exploitation;
  • for any disease and condition specified through regulations.
Eligibility criteria for aspiring couple The aspiring couple must hold a ‘eligibility certificate’ and ‘essentiality certificate’ issued by the relevant authority.
A essentiality certificate will be issued after fulfillment of the following conditions-
  • insurance coverage for a period of 1 year 4 months covering postpartum delivery difficulty or complications for the surrogate.
  • an order of custody and parentage of the surrogate child approved by a Magistrate’s court;
  • a certificate of proven infertility of one or both members of the aspiring couple from a District Medical Board;
The “eligibility certificate” to the aspiring couple is issued after fulfillment of the following conditions
  • the couple should be a citizen of India and married for minimum five years;
  • between 26 to 55 years old (husband) and 23 to 50 years old (wife);
  • they should not have any surviving child (adopted, biological, or surrogate); this would not include a child who is physically or mentally suffers from life threatening disorder or moribund illness;
  • other conditions that may be specified by regulations-
Eligibility criteria for surrogate mother To obtain a eligibility certificate from the relevent authority, the surrogate mother has to be:
  • a close relation to the aspiring couple;
  • a surrogate merely once in her lifetime;
  • 25 to 35 years old;
  • a married woman having her own child;
  • holds a medical certificate and psychological fitness for surrogacy. Moreover, the surrogate mother can’t provide her own gametes for surrogacy.
Appropriate authority The state and central governments shall nominate/appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. The functions of the appropriate authority include;
  • enforcing standards for surrogacy clinics;
  • suggesting modifications to the rules and regulations.
  • approving, cancelling or suspending registration of surrogacy clinics;
  • investigating and taking action against violation of the provisions of the Bill;
Registration of surrogacy clinics Surrogacy clinics can’t manage surrogacy related procedures unless they are certified by the appropriate authority. Clinics needs to apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
State and National Surrogacy Boards The State and National governments shall constitute the State Surrogacy Board (SSB) and the National Surrogacy Boards (NSB), respectively. Functions of the NSB include,
  • laying down the code of conduct of surrogacy clinics; and
  • suggestion to the union government on policy matters relating to surrogacy;
  • monitoring and supervising the functioning of SSBs.
Abortion and parentage of surrogate child A child born out of a surrogacy process will be considered to be the biological child of the aspiring couple. An abortion of the surrogate child needs the written permission of the surrogate mother and the authorization of the appropriate authority. This authorization must be compliant with the Medical Termination of Pregnancy Act, 1971. Other than this, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
Offences and penalties The offences under the Bill contain:
  • advertising or undertaking commercial surrogacy;
  • exploitation of the surrogate mother;
  • leaving, disowning or exploiting a surrogate child;
  • importing or selling human gametes or embryo for surrogacy.
The penalty for such offences is a fine of up to 10 lakh rupees or imprisonment for up to 10 years. The bill confirms a range of penalties and offences for other violations of the provision of the Bill.

India : Regulation for Surrogacy

Surrogacy is a process of carrying and delivering a child for another person. A surrogate mother is a woman who carries a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from another woman. Assisted reproductive technology (ART) is a medical process used mainly to address infertility. It contains procedures such as in vitro fertilization. It includes cryopreservation of gametes or embryos, intracytoplasmic sperm injection (ICSI), and may contain the use of fertility medication.
In vitro fertilization (IVF) is a process of fertilization where an egg is mixed with sperm outside the body, in vitro. The process includes stimulating and monitoring a woman's ovulatory process, putting aside an ova or ovum from the woman's ovaries, and letting sperm fertilize them in a liquid in a laboratory. On October 3, 1987, India's first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata. Boosting infertility as a medical condition is a big barrier in the overall happiness of couples and can’t be underestimated mainly in a patriarchal society. In this, surrogacy comes as an ultimate saviour.

Low cost:

Surrogacy cost in India is too low (around one-third) than that of western or developed countries. India is considered a good choice for foreign couples who look for cost-effective treatment for infertility and medical tourism in India has thrived on surrogate practice. But surrogacy is considered as malpractice because of “renting the womb”, the government of India barred surrogacy for foreign nationals in 2015.

Opposition of Surrogacy for reasons-

  • child Commoditization
  • Undue interferences with nature
  • Womb renting breaks the bond, attachment and familiarity between the child a mother
  • Exploitation by the middlemen or the agents
  • Exploitation and manipulation of both poor women and the child Born
  • There has not been process to track the clinics or any law or regulation to ensure that the women not cheated by the clinics or the aspiring couples.
  • The surrogates mothers are not provided medical treatment or good food and no provision of postpartum care.

Criticism of the Surrogacy Regulation bill-2019

  • Altruistic surrogacy involves agreement where a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.
  • The Bill lack the definition of "Close relative"
  • The Bill mention of married Indian couples who can take advantage of a new law. But bill not mention of Non-Resident Indians (NRI) studying or working abroad. Further, this bill is exclusionary for homosexual couples, unmarried couples, and single women and men.
  • advertising or Compensation about the act of surrogacy is a punishable criminal offence as per the Surrogacy bill. Surrogacy is a source of livelihood for poor women. So, the government needs to look for the dilemma of poor
  • Due to the prevalence of covert ART clinics, it is not easy to regulate commercial surrogacy. Further banning of commercial surrogacy will lead to the exploitation of women
  • "Vasudev Kutumbkam" as India's philosophy refers to all world is my family but Surrogacy limited to Indian and exclusion of foreign nationals create disparity even Indian who is a citizen of other countries

India has appeared as a surrogacy center for couples from other countries and there have been reports concerning exploitation of surrogate mothers, abandonment of children born out of surrogacy, unethical practices, and rackets including intermediaries importing human gametes and embryos. Following this Act, the 228th report of the Law Commission of India permitting altruistic surrogacy and prohibiting commercial surrogacy by enacting suitable legislation is right. The surrogacy bill is considered good legislation to curb and regulate the unethical practice. But, specific provisions regarding no involvement of NRI or who are close relatives and other countries people which aids to foster the LGBT community, Tourism, prevention of underground activities, single patronage, etc, so government must solve these issues and discuss all stakeholders before finalizing bill.