Surrogacy Bill is a big step forward

In 2018, a 64-year-old man was arrested by Hyderabad police for harassing a woman he had hired to be the surrogate mother of his future child. In 2019, Alipore, Kolkata, police arrested a woman and a doctor, allegedly involved in a surrogacy racket. Likewise, in 2018-19, several incidents were reported to the police and brought before the courts in relation to harassment and violence against surrogate mothers.

These incidents pushed a demand for a law regulating surrogacy in India and protecting the rights of parents and surrogate mothers. It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and were paid a pittance for repeatedly becoming surrogate mothers to supplement family income.

As a result, in February, the Union Cabinet approved recommendations made by a 23-member Rajya Sabha Select Committee on Surrogacy (Regulation) Bill, 2020. As per the Bill, widows and divorcees will also be allowed to opt for surrogacy. The amended Bill is a reformed version of the draft legislation which was passed by the Lok Sabha in August 2019, but its provisions, including that only a close relative of a couple can be a surrogate mother, had invited criticism. To discuss and analyze the bill in detail, it is pertinent to understand in brief the concept and logic behind framing a new set of rules for allowing altruistic surrogacy in India.

‘Surrogacy’ is a practice where a woman gives birth to a child for an intending couple. In India, demand for surrogacy has increased. The reasons are advanced age, problems with the uterus, pelvic tuberculosis, infections, etc., in couples who want to have a child. In rural areas, people do not plan childbirth. They get married quite early and getting pregnant is the most natural step after marriage.

The earlier bill of 2019 defined commercial surrogacy as surrogacy or its related procedures undertaken for monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage. India is one of the few countries that allowed commercial surrogacy for a long period of time, apart from Russia, Ukraine and some states in the US. With the coming of the new law, commercial surrogacy will be prohibited, including the sale and purchase of human embryo and gametes.

Ethical surrogacy for Indian married couples, Indian-origin married couples, Indian single woman (only widow or divorcee between the age of 35 and 45 years) will be allowed on fulfillment of certain conditions. The Bill proposes that only Indian couples (both partners of Indian origin) can opt for surrogacy in the country. It also allows the person using a surrogate mother to only pay for her medical expenses to reduce commercialization of the act. The proposed insurance cover for surrogate mothers has now been increased to 36 months from 16 months provided in the earlier draft.

The Bill further proposes to regulate surrogacy by establishing a National Surrogacy Board at the central level and State Surrogacy Board and appropriate authorities in states and Union Territories respectively. The 2020 Bill allows a “willing woman” and not just a “close relative” to become a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.

The reason for allowing any “willing woman” and not just a “close relative” is that as families are getting smaller these days, it is becoming difficult to find somebody among close relatives who would be willing. So, altruistic surrogacy has been allowed where there is no element of coercion and is done in the spirit of helping somebody. This would ensure that all those who are needy can take advantage of science.

The definition of “infertility” as the inability to conceive after five years of unprotected intercourse should be deleted on the ground that it is too long a period for a couple to wait for a child.

Further, the new Bill is silent on the right to parenthood of LGBTQ couples.

The bill only allows surrogacy for heterosexual couples or single women who are unable to have a child.

Health experts have criticized the absence of monetary compensation for the surrogate. While it is a good step to omit the “close relative” clause for a surrogate, it doesn’t help to not include monetary compensation for the surrogate because not many women would be interested in carrying someone’s child without being paid for it. Surrogate clinics should also be established at the district level with a lady medical practitioner appointed full time.

Surrogacy is a boon for women who are looking to make ends meet.

Although there are a few criticisms of the bill, on the whole, the recent moves of the government with a liberal view or approach on the issues of reproductive rights of women, be it medical termination of pregnancy, the Assisted Reproductive Technology Regulation Bill or the surrogacy bill, are all much needed and welcome.

(The writer teaches at NALSAR, Hyderabad)