Issue

Context:

• Union Cabinet approved the introduction of the Surrogacy (Regulation) Bill, 2019 that prohibits commercial surrogacy and allows surrogacy services only for married Indian couples who have no children.
• The bill shall apply to the entire country except for Jammu and Kashmir.

What is Surrogacy?

• It is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the new-born child's parent(s) after birth.
• Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother's health or is a same sex couple's preferred method of having children.
• Commercial surrogacy refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses.

Background

• India has been a preferred destination for those wanting a surrogate child.
• The cheap availability of the service enables an overuse of the practice with commissioning parents arriving from various other countries as well.
• In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy, which made the practice legal, but did not give it legislative backing.
• A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.
• There have been several reports about the exploitation of surrogate mothers, who are confined to “hostels” during pregnancy and not allowed to meet their families and women who do it repeatedly for a paltry amount, putting their own bodies at risk.
• Assisted Reproductive Technology (ART) Bill, 2014 talks about banning commercial surrogacy and restricted surrogacy for “Infertile Indian couple” only.
• However, Indian couple definition includes OCI, PIO, NRI or foreign nations who have married to Indian.
• All married and single women are allowed to be surrogate mother. The surrogate mother shall be of age in between 23-35 years; she must have at least her own children not less than 3 years and not allowed to born more than one successful surrogate child.

Analysis

Why ban of Commercial Surrogacy in India?

• It includes sale and purchase of human embryo and gametes.As an extension of this, some have even described it as modern-day slavery and a mockery of motherhood.
• It is exploitative in nature- emotionally, financially and morally. In India, the surrogate receives approximately 20 % (or less) of the total cost.
• Foreign nationals, who want to escape tough surrogacy laws in their own countries, come to India in search of poor vulnerable women, who can be used for renting their wombs to produce a baby for a petty amount of money very easily in the absence of regulations.The global surrogacy trade, however, has been fraught with scandals.
• This type of surrogacy focuses on the needs of the client especially India where surrogate mothers are offered preterm childbirth through cesarean surgeries in order to accommodate clients’ availability to take time off from work.

Downsides of banning commercial surrogacy

• Ban has slowed a brisk global trade in Indian working-class women’s reproductive capacities that is estimated to have garnered anywhere from $400 million to $1 billion per year.
• The baby tradedoes not stop with bans on commercial surrogacy. Instead, infertility clinics jump through legal loopholes by moving surrogate mothers across borders. These movements expose surrogate mothers to great risks.
• As a result, the women are powerless to terminate their contracts, or go back home if they choose to do so. They are isolated from friends and family and have no legal recourse to address financial abuses or medical malpractice.

Surrogacy (Regulation) Bill, 2019

Pros of the bill

• It proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories.
• It will regulate the surrogacy services in the country.
• It prohibitscommercial surrogacyand allows ethical surrogacyfor needy infertile Indian couples.
• It prohibitsexploitation of surrogate mothers and protects the rights of children born through surrogacy
• This bill makes the service available only to married Indian couples who have been medically found to be infertile and it won’t be permitted for live-in partners or single parents.
• It allows only close Indian relatives to be surrogate mothers and purely for “altruistic” reasons. It states an Indian infertile couple, married for five years or more, can go in for ‘altruistic surrogacy’ where the surrogate mother will not be paid any compensation except medical expenses and insurance.
• All surrogacy clinics will have to be registered and the surrogate mother cannot be paid directly

Concerns with the bill

• It sets no rules as to how much compensation a surrogate mother can get and should get. This is like “forced labour" because non-payment of any compensation is against Article 23 of the Constitution of India.According to the Centre for Social Research (CSR) report, surrogate mothers are paid $4000-$5000 for bearing the child.
• However, clinics charge double money from the adoptive parents. The reason driving the mothers to surrogacy is usually poverty and lack of education, which further ensures their inability to challenge the exploitation.
• Supreme Court has recently decriminalised Section 377 and the LGBT (lesbian, gay, bisexual, transgender) community has been accepted to be a part of the mainstream. But, in this Bill, there is no mention of same sex couples.
• There is a need to stop “fashion surrogacy” since some celebrities were opting for it as they did not want their figures destroyed.
• The bill does not define who is a close relative.
• Endorsing altruistic surrogacy will enforce emotional and social pressure on close female relatives without any compensation for immense emotional and bodily labour of gestation involved in surrogacy as well as loss of livelihood.
• Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 guarantees “protection of life and personal liberty of all persons”. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to pass the test of equality and there is no connection with the intended objectives of the proposed legislation.
• Right to Life includes the right to reproductive autonomy, which includes the right to procreation and parenthood. It is not for the State to decide the modes of parenthood. Constitutionally, the State cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy.
• No financial implications, except for the meetings of the National at Surrogacy Boards and appropriate authorities, which will be met out of the administration budgets of respective departments.
• A blanket ban on commercial surrogacy proposed in the Bill could trigger a black market for surrogacy services in India which would lead to increased exploitation with no mechanism for protection of any of the parties involved in the surrogacy arrangement.
• It could result in trafficking of surrogate mothers to foreign nations or safe surrogacy havens around the globe for monetary returns.

Advantages of Surrogacy

• It allows infertile couples, single people and members of the LGBT community to become parents when they may not be able to have children otherwise.
• In most cases, gestational surrogacy allows one or both parents to be biologically related to their child.
• It gives hopeful parents the opportunity to raise a child from birth.
• Intended parents may face fewer restrictions with surrogacy than with adoption; those who cannot adopt due to agency restrictions on factors like age can still pursue surrogacy.
• Surrogates have already carried other pregnancies and have a proven uterus, increasing their chances of successfully carrying a surrogate pregnancy. This may make surrogacy more likely to be successful than fertility treatments for intended parents.
• Surrogacy gives intended parents more control and peace of mind throughout the pregnancy than they usually have with fertility treatments or adoption.

Is Surrogacy ethical?

• There had been many cases of death related to surrogacy which neither commissioning parents nor the doctors were ready to take responsibility of.
• Pregnancy and child birth may pose some medical risks to the mother, but a surrogate inherits these risks and others while the intended mother's or parents' health, especially in the case of male homosexual couples, is uncompromised.
• Sometimes, Indian adoption laws or citizenship laws of some other countries also create problems. For example, Germany gives citizenship by mother; this creates issues in determining the nationality of child.
• There were no strong laws for following issues such as rights of surrogate mother for fair compensation, maternal health care, right to abort etc.
• Commercial surrogacy arrangements involve a woman giving birth to a child that is not hers for money. Sometimes surrogacy is described as akin to "baby selling" or "womb renting," which in some ways is an accurate description.
• Homosexuals and single parents are not allowed to go for surrogate mothers.
• There had been few cases in which commissioning parents left surrogate mother because they did not like the surrogated child.
• There have been instances where poor girls and women were forced to become surrogate.
• There were no rules for medical insurance for issues that could arise in the pregnancy or later, and also the insurance to cover the child’s upbringing if the surrogate mother is abandoned by the legal parents.
• The research states that clinics do not provide the mother with a copy of the contract that is signed by the adoptive parents. In order to escape social stigma, pregnant women often stayed in shelter homes that provided them with lesser security and assistance than required.
• ICMR guidelines (2005) did not set accountability within the agencies indulged in providing surrogate mothers; they did not properly address the issues of sex selection.

Way Forward

• In India, people are practicing surrogacy when nearly 12 million several children are orphans. Adoption of a child in India is a complicated and a lengthy procedure for those childless couples who want to give a home to these children. Hence, they are forced to opt for IVF (in-vitro fertilisation) or surrogacy.
• There is a strong need to modify and make the adoption procedure simple as an alternative to surrogacy.
• Surrogacy industry in India is fully grown today. Banning it at this stage may create implementation challenges and push the business underground.
• Policy-level intervention is a welcome step. However, a ban on commercial surrogacy will not provide a solution to these issues.
• A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required.

Learning Aid