The Lok Sabha finally passed the Surrogacy (Regulation) Bill on Wednesday, December 19. Aimed at protecting women from exploitation, the bill mentions some rules to control surrogacy in India and has completely banned commercial surrogacy. The bill passed by Lok Sabha only allows for altruistic surrogacy.
Altruistic surrogacy is an arrangement wherein a woman volunteers to carry a pregnancy for intended parents without receiving any monetary compensation in return.
The bill was first introduced in Lok Sabha as the Surrogacy (Regulation) Bill 2016 on November 21, 2016.
The bill states that the surrogate mother and the couple that wants to have her child must be close relatives, though the term “close relatives” has not been clearly defined. The bill also provides for the formation of a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice of surrogacy.
The surrogate mother and the parenting couple need eligibility certificates from the appropriate authority. The bill allows only Indian citizens to avail surrogacy. This means that foreigners, non-resident Indians, and persons of Indian origin are banned from seeking surrogate mothers in India.
The draft law has a provision for a jail-term of up to 10 years and a fine of Rs 10 lakh for violations such as abandoning a child and choosing commercial surrogacy.
Commercial surrogacy is an arrangement wherein the surrogate mother is compensated for her services beyond the reimbursement of medical expenses.
Boost for adoption
Experts claim that the stringent rules and regulations might encourage couples to turn toward adoption. “As surrogacy services were easily available, people used to hire a surrogate for having a baby, no matter if they were married, single or same sex couples,” said Ranjana Kumari, director of the Centre for Social Research, Mint reported.
Kumari added, “As commercial surrogacy will not be an option in the near future, intended single parents or couples willing to have a baby will look at adoption to fulfil the need. This may possibly boost the dismal adoption figures in India.”
The problem with “close relatives”
Experts argued that allowing only “close relatives” to become surrogates fails to take into account the inequality that persists in many families.
“Regulation is much required, but this bill assumes that a surrogate will make a free choice. It completely forgets that women are often, the most powerless within a family system. Just because the transaction is taking place within the family does not necessarily imply that the woman is not being coerced for forced,” said Dr Pratima Sen, a reproductive endocrinologist based in Kolkata, News18 reported.
Anant Bhan, a researcher, said that the bill was “unclear” as to what “close relative” exactly means. He added that the mandate wherein a man and women need to be married for five years failed to take into account the reality of modern relationships.
“In today’s world, many couples tend to marry quite late. They could be in their late thirties when they marry and this is something that the law is inflexible on. Regulation is much required, but the bill in its current form is quite problematic,” Bhan told News18.
LGBTQ community excluded
Queer India’s Harish Iyer added that the exclusion of the LGBTQ community resulted in the “denial of equal rights” for the community. Iyer argued that the bill was “highly prejudiced”.
He said, “If the sole intention had been protecting the rights of surrogate mothers and to steer against making wombs-on-rent a norm, there would have been a plan to rehabilitate and integrate surrogate moms into our societal framework. There is no plan whatsoever in this direction. Instead, we get a bill that almost brings surrogacy to a standstill,” News18 reported.
“If surrogacy is out of bounds for queer persons, has the government strengthened its policy for adoption by queer persons? The answer is a loud “no”. There are enough studies in the west that prove that queer persons make good parents, not as good as, but better than heterosexual persons,” Iyer said further.
Does the bill violate Right to Privacy?
The newly passed Surrogacy bill defines a “couple” as “the legally married Indian man and woman above the age of 21 years and 18 years respectively”, and restricts the option of surrogacy to such couples only.
In her article for the News Minute, Sharanya Gopinathan argues that this completely bars single parents, gay and queer couples, and unmarried, possible “live-in” couples are completely barred from opting for surrogacy.
The bill places restrictions on heterosexual couples as well. In order to be eligible for surrogacy, the heterosexual, married couple needs “a certificate of proven infertility in favour of either or both members of the intending couple from a District Medical Board.”
As pointed by lawyer Ajita Bannerjee in Gopinathan’s article, the requirement of such a certificate is violative of the couple’s right to privacy. Gopinathan further argues that stating that only an infertile couple can opt for surrogacy is “inherently moralistic.”
Elton Gomes is a staff writer at Qrius