Analysis of the Surrogacy (Regulation) Bill, 2019

Analysis of the Surrogacy (Regulation) Bill, 2019
20 May 2020

Analysis of the Surrogacy (Regulation) Bill, 2019

India legalized commercial surrogacy in 2002, the immense growth of surrogacy in India led to an impeccable growth of several commercial firms and firms claiming specialty in surrogacy law and guiding and assisting foreign tourists who came in search of having an Indian mother rent her womb for the blessing of a child. Such arrangements can be considered to be exploitative in nature as they are not only encouraging baby-selling but also diminish the dignity of women's reproductive capacities and the inherent value of the children by modifying them. This paved the way for the establishment of various foreign companies in India, assisting people coming round the globe and helping them find a surrogate Indian mother, assisting the foreigners in paperwork related to surrogacy and assisting the child in acquiring a passport and a visa to depart from the country.

The 228th report of the Law Commission of India has recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting suitable legislation. One of the prime reasons for surrogacy services to bombard in India is poverty, which makes poor Indian women rent her womb for money or other essential commodities.

In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother. The guidelines also specified that the surrogate mother cannot donate her own egg for the surrogacy and that she must relinquish all parental rights related to the surrogate child.

Is Surrogacy Legal In India?

What had once been a popular destination for international intended parents no longer became an option in 2015, at which time the Indian government passed new regulations on the surrogacy process. Today, Indian surrogacy laws make it illegal for foreign intended parents to complete a surrogacy in India. The only people who can complete a commercial surrogacy in India today are Indian intended parents who have been married for at least five years.

The ban on foreign intended parents in 2015 was only the start of legislation regulating surrogacy. In December 2018, after almost two years of debate, an Indian surrogacy law was passed that:

  1. Made commercial surrogacy illegal
  2. Only allows altruistic surrogacy for needy, infertile Indian couples
  3. Requires intended parents to be married for five years and have a doctor’s certificate of their infertility
  4. Restricts women to being surrogates only once, and only if they are a close relative of the intended parents, are married and have a biological child
  5. Bans single parents, homosexuals and live-in couples from surrogacy
  6. These changes reflect a new era of surrogacy in Asia; other countries like Thailand and Nepal have recently implemented surrogacy bans, as well.
What is Surrogacy?

An artificial procedure to conceive a baby in the womb of a surrogate mother by the use of medical expertise and available medical technology. There are two types of surrogacy — traditional surrogacy and gestational surrogacy. In traditional surrogacy, a surrogate mother is artificially inseminated, either by the intended father or an anonymous donor and carries the baby to term. The child is thereby genetically related to both the surrogate mother, who provides the egg and the intended father or anonymous donor.

In gestational surrogacy, an egg is removed from the intended mother or an anonymous donor and fertilized with the sperm of the intended father or anonymous donor. The fertilized egg, or embryo, is then transferred to a surrogate who carries the baby to term. The child is thereby genetically related to the woman who donated the egg and the intended father or sperm donor, but not the surrogate. Some lesbian couples find gestational surrogacy attractive because it permits one woman to contribute her egg and the other to carry the child.

Traditional surrogacy is more controversial than gestational surrogacy, in large part because the biological relationship between the surrogate and the child often complicates the facts of the case if parental rights or the validity of the surrogacy agreement are challenged. As a result, most states prohibit traditional surrogacy agreements. Additionally, many states that permit surrogacy agreements prohibit compensation beyond the payment of medical and legal expenses incurred as a result of the surrogacy agreement.

Surrogacy (Regulation) Bill, 2019

The Indian Council of Medical Research (ICMR) made the first attempt at regulating surrogacy in 2005 by drafting the National Guidelines for Accreditation, Supervision, and Regulation of ART (Assisted Reproductive Technology) Clinics in India - the clinics that treat infertility, like in-vitro fertilization (IVF), and offer surrogacy services. This led to the drafting of the ART Bill in 2008, 2010 and 2014 but was never passed by the Parliament.

Then the Law Commission of India took it up in 2009 recognizing the need for regulating ART clinics and providing for rights and obligations of parties to surrogacy. It recommended allowing only 'altruistic' surrogacy and a ban on commercial surrogacy. What followed, however, was the Surrogacy (Regulation) Bill of 2016.

It pointed out that the ART Bill of 2014 contained details of all the ART clinics and ART banks, nature, and type of services provided, the outcome of the services, etc. The government, however, ignored this and most of its other recommendations. The 2016 Bill was reintroduced in 2019 and the Lok Sabha promptly passed it.

What the Bill provides?

The Bill proposes Surrogacy Boards at the national and state/UT levels and appointment of appropriate authorities for regulating the practice and process of surrogacy.

It bans commercial surrogacy and sale or import of human embryo for the purpose of surrogacy. It provides for mandatory registration of surrogacy clinics - those conducting surrogacy procedure in any form. Contraventions of Bill's provisions would attract imprisonment for not less than ten years with a fine of up to Rs 10 lakh.

It allows only "ethical altruistic surrogacy" to Indian married couples, in the age group of 23-50 for women and 26-55 for men, who should have been legally married for at least five years. "Altruistic surrogacy" has been defined as one in which no charge, expenses, fees, remuneration or monetary incentive of whatever nature is paid to the surrogate mother, except for her medical expenses and insurance cover.

The Bill says the surrogate mother should be a "close relative", "an ever-married woman having a child of her own" and in the age group of 25-35. She would be allowed to surrogate "only once".

The termination of such a pregnancy can only be carried out with the written permission of surrogate mother and on authorization by the appropriate authority.

It also seeks to prevent abandonment of the child born out of surrogacy under any condition and provide for the same rights and privileges as are available to the biological child.

Purposes for which Surrogacy Permitted

Section 4(ii) of the Bill has provided with the conditions exclusively under which the surrogacy is permitted in India:

  1. The intending couple who wish to practice surrogacy must suffer from proven infertility through medical reports.
  2. Only altruistic surrogacy to be permitted which is for genuine help of intending couples without any monetary return except for the medical expenses.
  3. It restricts commercial surrogacy which is practiced by surrogate mothers for the purposes of monetary returns.
  4. The children born out of surrogacy must not be subjected to any sort of exploitation, prostitution or sale to other persons.
  5. The couple suffers from any disease or condition as specified under regulation.
Intending Couple Eligibility

Section 4(iii)(a) of the Bill states that eligibility criteria for the intending couple has been established under the bill for them to undergo surrogacy. The couple needs to gather a ‘certificate of essentiality’ and a ‘certificate of eligibility’. Certificate of essentiality is obtained by the intending couple on the fulfillment of certain conditions:

  1. Certificate of proven infertility of the couple issued by District Medical Board
  2. Custody of the child passed to the couple by Magistrate Court
  3. 16 months of insurance to maintain the surrogate mother for her medical expenses which include healing procedures.

Certificate of eligibility is issued on the fulfillment of other sets of requirements:

  1. The couple is to be of Indian nationality
  2. The couple is to be married for at least 5 years
  3. The wife should be between 23 to 50 years and the husband should be between 26 to 55 years.
  4. The couple does not have any other surviving child through adoption, surrogacy or biologically unless the child is mentally or physically challenged. Any child suffering from any life-threatening disorder or disease is excluded from this condition.
  5. Any other condition specified by the regulations
Surrogate Mother Eligibility

Section 4(iii)(b) of the Bill states that certification of eligibility by appropriate authority is required by the surrogate mother under fulfillment of the following conditions placed by the bill:

  1. The surrogate has to be a close relative of the couple;
  2. The surrogate mother must be a married woman who has a child of her own;
  3. The woman shall be 25 to 35 years old;
  4. Only once in a lifetime, a woman can be a surrogate;
  5. Certificate of physical and psychological fitness for surrogacy.
Penalties for Offences

In Chapter VII of the Bill, the offenses have been identified under this bill and penalties prescribed for the commission of such offenses.

Involvement in commercial surrogacy through advertising or practicing, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy are the offenses under this Act. Every offense under this Act is cognizable, non-bailable, and non-compoundable.

The punishment for commission of these offenses is imprisonment for 10 years and a fine up to 10 lakh rupees.

Case Laws

Baby Manji Yamada v. Union of India

This case was about a child who was born in India to a surrogate mother for a Japanese couple. The Japanese couple separated a month before the birth of the child. The Japanese father wanted to take the child with him to Japan but lack of legal framework on such regard in Japanese laws restricted the travel of the child to Japan. The Supreme Court of India decided the matter allowing the grandmother to take the child out of the country. This case drove the government to make strict regulations on the practice of surrogacy.

Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar

The case states that the intelligible differentia provided in the doctrine of reasonable classification shall be decided on the fulfillment of certain guidelines formulated in the case. Any law in violation of such guidelines would be deemed violative of Article 14. Under the Bill, any individual who has been discriminated against on being falling into the restrictions placed can also be treated as a class, also the vagueness of the terms used would reduce the legislation’s capacity to impose restrictions.