India’s New Surrogacy Bill 2018: Upvote Or Downvote?

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What is the Surrogacy Bill about?

The Lok Sabha passed the Surrogacy (Regulation) Bill, 2016, on December 19 with a voice vote amid repeated disruptions and adjournments.

The Bill ensures effective regulation of surrogacy, prohibits commercial surrogacy, and allows altruistic surrogacy to needy Indian infertile couples who have been married for at least 5 years. Under the Bill, the surrogate mother and the intending couple need eligibility certificates from the appropriate authority.

The surrogate mother must be a “close relative” of the couple who intend to have the baby through surrogacy. She must have herself borne a child, should not be a Non-Resident Indian or a foreigner and can be a surrogate only once in her lifetime.

Highlights of the bill

  1. The Surrogacy (Regulation) Bill, 2016 was passed in Lok Sabha today with a voice vote amid several adjournments over other issues. 
  2. It provides for the formation of a National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for the regulation of the practice. 
  3. Homosexuals, single parents, and live-in couples are also not allowed to have children via surrogacy in India.
  4. Couples that already have children will not be allowed to go for surrogacy, though they would be free to adopt children under a separate law.
  5. Foreigners, non-resident Indians and persons of Indian origin are banned from seeking surrogate mothers in the country.

Why did we need it?

The ban on commercial surrogacy was proposed after a study said that there is no payment structure for surrogate mothers. This study was carried out by the non-profit Centre for Social Research (CSR) with the support of the Union Ministry of Women and Child Development. It said that the surrogacy contract is signed between the surrogate mother (including her husband), the commissioning parents, but that the surrogate mothers were not given a copy of the written contract of the surrogacy arrangement and they were also not aware of the clauses of the contract.

The research says that surrogate mothers mainly stayed in rented houses (96 percent in Delhi and 90 percent in Mumbai). In Delhi, only 44 percent of the respondents had sanitary lavatories while in Mumbai only 24 percent of the respondents had the facility. Seventy-six percent respondents in Delhi and 44 percent in Mumbai had access to water supply.

foreigners find India a good option to achieve parenthood since the country has low-cost medical facilities, easy availability of women for renting their womb and virtually no law on the ground.

What are the problems of the bill?

Over the years, the proposal to ban commercial surrogacy has sparked heated, divisive discussions. Opponents of the ban contend that in a country like India, an outright prohibition of commercial surrogacy will only push the business underground, into the black market. This, they say, will only lead to women being exploited even more. But proponents of the ban cite the bioethical problems of allowing commercial surrogacy, which treats a woman’s body like a commodity in the marketplace.

While the Law Commission sought a ban, a Parliamentary committee that analysed the Bill opposed an outright ban and called the government’s attempts too “moralistic”. It robs women of their choice and denies them financial benefits that could help their own families.

Ethical questions aside, the complexity of the Bill has also come under severe criticism. First, the Bill reinforces archaic ideas of familial relationships. It mandates that only “close relatives” can become surrogate mothers, forgetting that inequality plays its part within families and keeping the transaction within the family fold may not mean that the surrogate has made a free choice.

Second, the law prohibits homosexual couples from commissioning surrogates, mandating that the couple should be a man and a woman who have been married for at least 5 years. This is out of tune with other constitutional developments over the past few years, including the decriminalization of homosexuality by the Supreme Court in September. 

The Bill puts in place a bureaucratic web that has the potential to become an exploitative tool in itself. Even filing cases against violations requires some form of bureaucratic consent. There is also the problem of that the regulations do not align with international laws, given that many prosperous countries continue to allow commercial surrogacy. This means that clinics and agents will be tempted to use illegal methods to meet the demand of clients. Also curious is the provision to give women who offer commercial surrogacy the same punishment as agents and clinics – 10 years in jail.

While the aim of protecting women against exploitation is a noble one, the Bill passed by the Lok Sabha has many flaws and requires to be seriously reconsidered.

Parts of this article were first published in NDTV, Scroll India and Down To Earth.

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