Critical Analysis of Surrogacy Bill, 2016

CRITICAL ANALYSIS OF SURROGACY BILL, 2016

Author: Ritik Saluja, GGSIPU, Delhi

Brief Introduction to Surrogacy

Surrogacy is the arrangement in which a woman agrees to convince the child of another couple by In-Vitro Fertilization (IVF), give birth to a child and hand it over to the couple who will be considered as the legal parents of the child. A woman bearing the child is called a surrogate mother or surrogate. The couple who become legal parents after the birth of the child is called as intended parents.

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.

Laws regulating surrogacy procedures prior to Surrogacy Bill, 2016

Surrogacy In Indian was not legal till 2002. In 2005 Indian Council for Medical Research(ICMR) in collaboration with the National Academy of Medical Sciences gave some guidelines which deal mostly with Assistive Reproductive Technology (ART) clinics, techniques, and standards, which cover surrogacies also. Some of the guidelines related to surrogacy are as follows :

• Surrogacies will continue to be governed by a contract between intended parents and surrogate which will define the terms such as consent of parties, remuneration to be paid, expenses covered, etc.

• Such a contract should necessarily cover life cover insurance of a surrogate mother.

• Medical Termination of Pregnancy Act, 1971 will continue to be applied in all cases of abortions.

• Consent of intended parents is of no consideration in case the surrogate mother decides in favour of abortion.

• Determining the sex of a child before birth will continue to illegal and governed by existing laws. Sex-selective surrogacies also prohibited.

• Birth Certificate will have names only of intended parents.

• One of the intended parents should be a donor in surrogacy.

Changes intended to be brought in by Surrogacy Bill, 2016

Surrogacy Bill, 2016 was introduced in Lok Sabha on November 21, 2016, and passed by Lok Sabha on December 19, 2018. Changes Intended to be brought in by Surrogacy Bill, 2016 are as follows :

1. This bill prohibits commercial surrogacy and only allow altruistic surrogacy. No payment is other than basic medical expenses and life insurance covers. Commercial surrogacy is made punishable with imprisonment up to 10 years and fine up to Rs. 10 lakhs.

• At least one of intending parents should be infertile.

• Intending parents should not have any living biological or adopted child.

• Intending parents can go for surrogacy after at least 5 years of being married. The intending father should be of age between 26-55 years and the intending mother should be of age between 23-50 years of age.

• One of the intending parents is no longer essentially to be one of the donors.

• The surrogate mother should be (i) a close relative of intending couple, (ii) married, (iii) have a child of her own, (iv) of age between 25-35 years, (v) going through surrogacy for the first time, (vi) having a medical fitness clearance certificate.

• Both surrogate mother and the intending couple should apply for certification and can carry out with surrogacy only after getting certificates.

• Storage of embryo or gamete is prohibited.

Advantages of Surrogacy Bill, 2016

1. According to the provisions of this bill surrogate mother can now act as the donor of egg in carrying out the pregnancy. This provision will be really advantageous as it will increase the chances of fertilization.

• The intending couple no longer essentially to be one of the donors to be biologically linked with a child. This will be helpful for those couples in which both partners are infertile or their hit rate is very low due to which they are facing difficulty.

• Now only those couples in which at least one of the partners is infertile can get a child via surrogacy. Prohibiting those couples who are able to conceive naturally, from going for surrogacies will help to put forward those who are not able to conceive naturally.

• Establishment of registration boards and making it necessary for intending couples and surrogates to register before going for surrogacy will largely help to regulate the highly unregulated and unregistered surrogacies. This is one of the main reasons for the introduction of the bill. A lot of exploitation was going on in the surrogacy business. Registration will help to control this menace. Also, registration will solve the disputes related to the parentship of the child.

• Under the provisions of this bill only Indian couples are allowed to be parents via surrogacy in India. None of the intending parents can be a foreigner or have a foreign origin. As happened in Baby Manji Yamada vs Union of India and Others, 2008 case there can arise a lot of complications such as surrogacies may not be legal in there own country or ambiguities related to nationality of child born or what if intending couple refuses to take care of child or they may subject child to cruelty after taking him to there country or complications may relate to non payment of expenses etc.

Drawbacks of Surrogacy Bill, 2016

1. It is made mandatory according to this bill that intending parents should be married for at least 5 years. These provisions do not make sense as at least one of intending parents should be infertile. If it can be proved before completion of 5 years of marriage that one of the partners is infertile, then it would be totally illogical to keep them waiting to get completion of 5 years of marriage.

• Under the provisions of this bill, only those couples are permitted to opt for surrogacy who do not have any living biological or adopted or surrogate child. Thus by legislation differentiating between those who have a living child and those who haven’t, right of those couples who have a child before to have another child is violated. Further, there is no rational nexus between making such differentiation and object sought to be achieved.

• Under the provisions of this bill commercial surrogacy is prohibited and made punishable with imprisonment up to 10 years and fine up to Rs. 10 lakhs. Instead of prohibiting commercial surrogacy, it should be allowed, encouraged and well regulated. Proper regulations will help to curb down illegally carrying out of surrogacies, can be a potential source of income for govt. and will be an opportunity for surrogates to financially stabilize themselves. Those couples without a child will get a child, those women without stable financial background will get resources, thus it will be a win-win situation.

• Under the provisions of the bill, infertility has been defined in a very restricted sense. Under the provisions of this act, infertility is defined as the inability to conceive after 5 years of unprotected coitus or other medical conditions preventing the couple from conception. There are a lot of cases that are left out. There may be cases like couples that are able to conceive but have resulted in miscarriage a lot of times. There are various other diseases which are not covered in infertility but prevent couples from conceiving.

• This bill also prohibits the storage of embryo or gamete. In surrogacy, eggs are fertilized in labs. After it develops into an embryo or gamete it is planted in the uterus of surrogates. The success rate of such plantation is very low using present-day technology. Thus if the embryo is not stored than egg has to extracted from intending mother again and again which can cause health problems to her. Thus storage of embryo or gamete should be permitted and to prevent its misuse clinics should be ordered to submit monthly reports.

• There in the bill, it is made mandatory to get certificates of eligibility by surrogate mother and intending parents. No time limit to the issue is defined, resulting in ambiguities.

Conclusion

After the Baby Manji Yamada vs Union of India and Others^, there are law commission reports suggesting for the need of a law to regulate surrogacy procedures. It is fully agreed on the need for such law but simultaneously this law draft suffers from many drawbacks which should be carefully looked into.