Context

The Rajya Sabha Select Committee has recommended 15 major changes in Surrogacy (Regulation) Bill, 2019.

Background:

• The roots of Indian surrogacy have its traces in the history and provided evidence of being a century-old procedure.
• The procedure became a successful practice in India with the birth of the world’s second and India’s first IVF baby Kanupriya alias Durga who was born in Kolkata on October 3, 1978.
• The business of commercialized surrogacy in India began in 2002, and the country quickly became one of the top surrogacy destinations for foreign couples. 
• First effort to regularize this sector was done in 2005 when the Indian Council for Medical Research (ICMR) gave first guidelines for accreditation, supervision and regulation of ART clinics.
• In 2008 Supreme Court of India stressed the need of legislation to govern the surrogacy.
• Then in 2009 Law Commission of India submitted 228th Report on the need for legislation to control surrogacy and strongly recommended for prohibiting commercial surrogacy and allowing ethical altruistic Surrogacy services by enacting a suitable legislation.
• In 2010 ICMR revised the guidelines and proposed a legal agreement between commissioning parent, prospective surrogate and ART clinic before commencing the process.
• In 2015 Ministry of Health and Family Welfare invited suggestions to revise the draft of the ART bill which is still pending.
• In 2015 Government of India prohibited commercial surrogacy and closed the doors for foreign nationals, NRI and POI.
• In 2019, the Surrogacy (Regulation) Bill was passed by the Lok Sabha but had to be referred for re-assessment to the 23-member select committee on November 21, 2019, as several Rajya Sabha members found certain clauses contentious such as allowing only altruistic surrogacy with a near relative as a surrogate.
• For now, surrogacy is in the process of being regulated, with commercial surrogacy is completely prohibited.

Analysis

What is Surrogacy?

• Surrogacy is a method of assisted reproduction where intended parents work with a gestational surrogate who will carry and care for their baby(ies) until birth.
• In the practice, one woman carries the child for another with the intention that the child should be handed over after birth.

How does it work? Through In vitro fertilization (IVF), embryos are created in a lab at a fertility clinic. Sometimes the intended parents use their own genetic material. Sometimes, an egg donor is required. At the fertility clinic, 1-2 embryos are implanted into a gestational carrier, who carries the baby(ies) to term.

• Such a surrogacy arrangement may be altruistic or commercial in nature.  
• Intended parents use surrogacy to start or grow their families when they can't do so on their own.

Facts & Figures: According to a 2015 Ernst and Young study, around 27.5 million couples in the reproductive age group are infertile and about 1% (about 2,70,000 infertile couples) seek infertility evaluation. Of the people seeking remedy for infertility, 20-25%  undergo IVF treatment and of that small group, one percent may require surrogacy. Ten to Twelve per cent of surrogacy is commissioned because of irreversible destruction of the uterus due to TB, 8% because of the absence of uterus, 12% because of multiple failed IVF cycles, 12% because of multiple miscarriages, 10% because of removal of the uterus due to cancers, fibroids, etc.

Methods of Surrogacy:

• Traditional Surrogacy: In this process egg used is of a surrogate mother, thus she becomes the biological mother of a child.
• Gestational Surrogacy: In this process, surrogate mother’s eggs are not used. Eggs and sperms used are either donated by intended parents or other persons. The surrogate mother has no biological link with the child.
• Commercial Surrogacy: It includes surrogacies in which payment exceeding basic medical expenses and insurance covers are paid.
• Altruistic Surrogacy: It does not include payment of any monetary compensation other than basic medical expenses and insurance coverage.

What was in the Surrogacy (Regulation) Bill, 2019?

The Surrogacy (Regulation) Bill, 2019 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. The important provisions of the Bill are as given below:

• Regulation: The Bill prohibits commercial surrogacy, but allows altruistic surrogacy. 
• Purpose: Surrogacy is permitted when it is:

1. for intending couples who suffer from proven infertility
2. altruistic
3. not for commercial purposes
4. not for producing children for sale, prostitution or other forms of exploitation
5. for any condition or disease specified through regulations

• Eligibility criteria: To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
  • a close relative of the intending couple
  • a married woman having a child of her own
  • 25 to 35 years old
  • a surrogate only once in her lifetime
  • possess a certificate of medical and psychological fitness for surrogacy
• Further, the surrogate mother cannot provide her own gametes for surrogacy.
• Parentage: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.

Unsolved issues in the Bill:

Some major issues still continue to remain unsolved. Among them are:

• Medical expenses: In the Bill, medical expenses have not been defined. It may include home care (physical, mental, social).
• Undefined criteria: As per the bill, an only close relative will be eligible to be the surrogate mother. There is no clear definition for this.
• Irrelevant clause: The intending couple needs to be married for at least five years and is Indian citizens. Five years is also an arbitrary figure and not based on any science.
• Excluding PIOs & foreigners: It denies surrogacy for residents of Indian origin living abroad but is close relatives.

The major recommendations:

The government sent the Surrogacy (Regulation) Bill, 2019, to a 23-member select committee of the Rajya Sabha for review. The major recommendations of the Committee are as follow:

• Allowing single women: To allow single women (widow or a divorcee and Persons of Indian Origin) to avail of surrogacy.
• Insurance coverage: To increase insurance coverage for the surrogate mother from the 16 months proposed in the Bill to 36 months as the procedure of surrogacy poses the risks of medical complications and health hazards, post-partum (after delivery).  
• No need to be a close relative: To remove the requirement of surrogate mother to be a “close relative” as this requirement restricts the availability of surrogate mother and affects the genuinely needy persons.
• Changing definition of infertility: To delete the definition of “infertility” as “the inability to conceive after five years of unprotected intercourse” on grounds that it was too long a period for a couple to wait for a child.
  • There may be certain proven medical conditions such as the absence of uterus by birth, non-functional uterus, removal of the uterus due to cancer, fibroids etc. or patients with a chronic medical condition where normal pregnancy is ruled out and it is medically proven beyond any doubt that surrogacy is the only option.
• Parentage & Custody: To protect the interests of the child born through surrogacy, the order regarding the parentage and custody of the child, issued by a Magistrate, shall be the birth affidavit for the surrogate child.
• Allowing PIOs: To allow Persons of Indian Origin (PIOs) to avail surrogacy in the country after obtaining a certificate of recommendation from the surrogacy boards.
• Modifying the definition of altruistic surrogacy: To modify the definition of altruistic surrogacy to cover "other prescribed expenses” on nutritional food required, maternity-wear, and important things for the wellbeing and upkeep of the surrogate mother.
• Proper data collection: To make responsible appropriate authorities of the central and state governments to submit data on a number of surrogacy procedures, surrogacy clinics and all related aspects to the National Board on Surrogacy so as to develop a proper database which helps in monitoring and regulation of surrogacy in the country. 
• Improving terms of experts involved: To enhancing the term of experts on the surrogacy boards from one year as proposed in the bill to three years and officials of sufficiently higher rank to be the Chairman and Vice-Chairman of Appropriate Authorities as they deal with vital issues concerning surrogacy. 

Assisted Reproductive Technologies (Regulation) Bill (ART):

• The Select Committee recommended that the Assisted Reproductive Technologies (Regulation) Bill (ART), which is awaiting Cabinet approval, may be taken up before the Surrogacy (Regulation) Bill, since the ART Bill primarily deals with technical, scientific and medical aspects, including the storage of embryos, gametes, oocytes, etc. as contained in the Surrogacy Bill.

Challenges to Surrogacy:

• Unawareness: A surrogate mother is largely unaware of existing legal or medical procedures and the risks involved in the process.
• No legal recognition: Perhaps the most awful disadvantage is that surrogate mother is not legally recognized as “workers” in India since they do not sell mental or manual labour in the traditional sense of the term. Consequently, they do not have any legal rights.
• No international recognition: There are no internationally recognised laws for surrogacy, so many parents and children can be left vulnerable - or even stateless.
• Profit-making profession: In India, surrogacy is a $2.3-billion industry which allowed medical practitioners to earn huge profits, without any rules and regulations governing their practice.
• Risk to life: Surrogacy puts the lives of poor women, who rented out their wombs to a surrogate couple to earn a living, at great risk due to repeated pregnancies. 
• Exploitation of Fundamental Rights: The practice destroys the surrogate mother’s fundamental rights. While the surrogate mother gets a very small amount, doctors and other professionals thrive on huge profits.
• Injustice: While the surrogate mother could not refuse to give up the child, the intended parents had the right to refuse the child.

Regulation across the world:

• The status of surrogacy is varied across countries, ranging broadly from:
  • unregulated (Chile, Iran, Colombia, Japan, Sweden, Nigeria etc.) to altruistically and commercially legal (Russia, Kazakhstan etc.)
  • altruistically legal but commercially illegal (Belgium, Denmark, the UK, New Zealand, South Africa etc.)
  • both altruistically and commercially illegal (Germany, France etc.).

In the given situation, there is a strong need to address all the pitfalls in the law before its enactment. Rather than bans, governments should consider laws that uphold surrogate mothers’ sense of dignity and bodily integrity. Surrogate mothers should be treated as full human beings who have the right to choose how they get pregnant, the right to opt-out of medical interventions, the right to refuse cesarean surgeries, and the right to maintain contact with the babies they birthed.