By Anandita Bhargava, Junior Editor and Stuti Srivastava, Associate Editor
The practice of surrogacy can be traced back to the ancient times where ‘Niyoga Dharma’ was followed. ‘Niyoga Dharma’ refers to the practice of creating temporary alliance in case the husband was infertile. The human desire to be a parent is fundamental in a society.[i] With various advancements in sciences, surrogacy becomes an option for the infertile couples to fulfill this desire. The Supreme Court has defined surrogacy as a
“[W]ell-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.”[ii]
DEVELOPMENT OF THE SURROGACY (REGULATION) BILL, 2018
Surrogacy has begun to be widely used to achieve parenthood. A study backed by the United Nations- conducted in 2012, estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year, with over 3000 fertility clinics across the country.[iii] The surrogacy “market” has led India to earn the sobriquet ‘world capital for surrogacy’ while a village in Gujarat (Anand), earned the title of the ‘cradle of the world’.[iv]
In 2008, the Apex Court, in a complex case regarding the nationality and custody of a baby born through surrogacy, expressed its concerns over India becoming an attractive destination for surrogacy and highlighted the need for a proper law on surrogacy.[v]
Indian Council of Medical Research Guidelines, 2005 (“ICMR”)
These pro-surrogacy guidelines, attributing certain rights to the surrogate mother and the commissioning parents, led to the legalization of surrogacy in the country. It allowed for monetary compensation to the surrogate mother, which was to be decided by the surrogate mother and the parents. It also provided for a life insurance cover of the surrogate mother and ensured the right to privacy of the surrogate and the donors.[vi] The guidelines prohibited sex selective surgery and banned donation of surrogate’s egg for the embryo.
Law Commission of India: 228th Report
It expressed concerns over that the prevalent of use of surrogacy by foreigners and the lack of a proper legal framework which could result in the exploitation (financial/ physical/ psychological) of the surrogate mothers, who may have been coerced to become a surrogate due to poverty and lack of education. Hence, the Law Commission recommended the prohibition of commercial surrogacy and highlighted the need to enact a law on the issue.
Draft Assisted Reproductive Technology Bill, 2010
The following draft allowed surrogacy, subject to a number of conditions and guidelines. It allowed surrogacy to all single persons, married couples and unmarried couples. However, this Bill was never passed as a law.
In light of this background, the Surrogacy (Regulation) Bill was introduced in the Parliament in November 2016. It was referred to a Standing Committee in January 2017, which gave its report in August 2017. The bill, at present, has been passed in the Lok Sabha.
The Surrogacy (Regulation) Bill, 2018
The objective of the Bill is to regulate surrogacy services in the country, to prevent the exploitation of surrogate mothers and to protect the rights of children born through surrogacy.
This Bill prohibits commercial surrogacy and allows only ‘ethical’ or altruistic surrogacy which “does not involve any monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy”[vii].
The Bill presents a number of conditions for a surrogacy to be valid. The bill stipulates an eligibility criterion for the intending couple such as age criteria and marital status. A couple has to obtain a ‘certificate of essentiality’ and a ‘certificate of eligibility’.
It also stipulates an eligibility criterion for the surrogate mother. The surrogate must be a close relative of the intending couple, a married woman having a child of her own. She should be between the age of 25 to 35 years, not have been a surrogate earlier and must be certifiably mentally and physically fit. The Bill states that the number of attempts of the surrogacy procedure shall be prescribed through means of regulations.
The Bill also deals with the termination of pregnancy of a surrogate child. The abortion of such a pregnancy requires the consent of the surrogate mother only and authorisation by the appropriate authority, while also being compliant with the provisions of the Medical Termination of Pregnancy Act, 1971. A child born out of the surrogacy procedure shall be deemed to be the biological child of the intending couple, thus ensuring that he/she shall have the same rights as a biological child.
The Bill also seeks to regulate functioning of surrogacy clinics. All surrogacy clinics need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures. It also prohibits sex selective surrogacy and the storage of human embryo or gamete for the purpose of surrogacy. These restrictions are to be enforced by appropriate authorities that shall be appointed by the Central and state governments.
The bill has enlisted certain activities as offences under the Act, such as- undertaking commercial surrogacy, abandonment of surrogate child, exploitation of surrogate mother, selling a human embryo, amongst other things. It prescribes a punishment of imprisonment for a maximum period of 10 years and a fine which may extend to 10 lakh rupees for violations of its provisions.
There are several issues with the provisions of the bill, some of which have been analysed here.
Certificates of essentiality and eligibility
One of the conditions of ‘essentiality’ is proven infertility of either one or both partners. However, ‘infertility’ has been defined in a narrow sense under the Bill as “inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception”.
This definition does not include other circumstances wherein the couple may not able to conceive a child; for example- the inability to bear a foetus due to complications, hypertension, diabetes etc. The five year period provided in the Bill lacks reasoning because there are medical tests which can prove infertility even before and therefore, this period should be reduced in order to prevent unnecessary delay in conception.
The conditions of ‘eligibility’ limit the use of surrogacy to only married Indian couples, thus excluding unmarried couples, single persons and homosexual couples. The Bill also states that additional eligibility conditions may be specified by the National Surrogacy Board, through regulations. It is also mentioned that surrogacy may be allowed in cases of “any other conditions or disease”, other than those already mentioned. These conditions would be prescribed by the National Surrogacy Board by means of regulations. However, this provision brings in an element of subjectivity.
Limitation on use
The Bill limits the use of surrogacy procedures to married Indian couples, between the age of 23 to 50 years for the wife and 26 to 55 years for the husband. It does not allow the use of surrogacy for unmarried couples, widows, divorcees, NRIs and OCIs even though the Report of the Parliamentary Standing Committee recommended the liberalisation of the eligibility criteria to include these categories of people.
The bill does not define ‘close relative’, neither does it throw light upon the degrees of relationship that would be considered ‘close’ for the intending parents. The 2018 Bill places restriction on the surrogate mother to donate her own egg for the conception. This provision comes as a relief, as the 2016 Bill provided that surrogate could also donate her egg to conceive, increasing medically proven concerns over serious birth defects/ genetic abnormalities the child could be born with, due to proximate relationship.
The concern with this compulsion is that the patriarchal nature of families may cause subjugation of the consent of the woman. In such cases, the lack of consent may become extremely difficult to prove. It may also insinuate family disputes, from which the child also may suffer.
The Bill is silent upon provisions where the couple does not have ‘close relatives’ suggesting their only recourse to adoption.
Storage of embryos/gametes
The bill places a complete ban over the storage of embryos and gametes. The ban, intends to curb ‘medical errors’ of unfortunate mix-up and illegal selling of the embryos and gametes. However, it may prove to be cumbersome for the intending mother, since the success rate for implantation of the embryo and gametes is very low, the frozen embryos could be used for the repeated procedure.[viii] This ban places the intending mother under the risk of her health since repeated extraction of eggs may lead to medical complications or even instances where procreation could not be done due to this repeated extraction. It is for this reason that the ICMR had allowed storage of embryos and gametes for a period of 5 years.
Another issue that the bill presents is vis-à-vis matrimonial privacy. The Bill may present to be a problem since it may contravene the right to privacy under Article 21 of the Constitution.[ix] The ICMR, 2002 guidelines, also, mandates privacy and maintenance of confidentiality of the patients.[x] The mechanism, where surrogate mother can only be a close relative, may result in patient’s unwilling disclosure of private health conditions. This may in-turn expose women to greater risk hostile social environment- stigmatisation, domestic violence, repercussions on marriage, biased treatment, etc. There are risks of social ostracization which may hamper complete integration of child into the family as well.
The stringency sought can become more effective with the recommendations of the Parliamentary Standing Committee taken into account in order to suit the needs of the present situation. Moreover, the Bill should also take into consideration the social issues surrounding surrogacy as well as address the privacy and medical concerns arising due to the mechanism proposed.
The subjectivity and vagueness revolving around “other diseases” which permit conceiving child through surrogacy shall be sought to be minimised with an alternative quicker mechanism to the already existing one than amending law time and again and define ‘close relatives.
The Bill is a much-needed step towards the regulation of surrogacy procedures in order to prevent exploitation and unregulated surrogacy “market” that India harbours. The provisions of the bill, when enacted, will also keep a check upon the growing trend of “fashion surrogacy”.[xi] The passing of the Bill will also have an impact in the international community where stance regarding surrogacy remains grey.
[i] Michael Wells-Greco, The Status of Children Arising from Inter-Country Surrogacy Arrangements, 35 (2016).
[ii]Baby Manji Yamadav.Union of India &Anr., (2008) 13 SCC 518.
[iii]Nita Bhalla & Mansi Thapliyal, “India seeks to regulate its booming surrogacy industry”, Medscape, Reuters Health Information, 30 September, 2013, available at https://www.medscape.com/viewarticle/811861?nlid=35152_2043&src=wnl_edit_medn_obgy&uac=149266AJ&spon=16 (Last accessed on 1 January 2019).
[iv]Kuttuajeesh, “Surrogacy”, May 2013, available at http://www.studymode.com/essays/Surrogacy-1684520.html (Last seen on 7 January 2019).
[v] Supra ii.
[vi]TarishiVerma, “What are the surrogacy laws in India: Here is everything you need to know”, The Indian Express, 6 March, 2017, available at https://indianexpress.com/article/research/karan-johar-surrogate-children-yash-roohi-what-are-the-surrogacy-in-laws-in-india-here-is-everything-you-need-to-know-4555077/ (Last accessed on 1 January 2019).
[viii] “Frozen embryo transfer success”, IVF1, accessed at https://www.ivf1.com/frozen-embryo-transfer-success/(Last accessed on 7 January, 2019).
[ix]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[x] “Code of Ethics Regulations, 2002”, Medical Council of India, available at
http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx (Last seen on 7 January 2019).
[xi] Trend where public figures choose to conceive via surrogacy, irrespective of infertility, so as to save their body figures from changing. See- “Lok Sabha Passes Surrogacy Bill”, The Wire, December 19, 2018, accessed at https://thewire.in/law/lok-sabha-passes-surrogacy-bill (Last accessed on 8 January 2019).
**Photo taken from https://www.economist.com/international/2017/05/13/as-demand-for-surrogacy-soars-more-countries-are-trying-to-ban-it.