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Introduction of the bill
2016 was a monumental year in terms of historic legislation which passed before the House of Parliament, including the likes of Insolvency and Bankruptcy Code 2016, Rights of Persons with Disabilities Act, 2016. However, there was one bill which sparked its own share of controversies was Surrogacy (Regulation) Bill, 2016. It was introduced in November 2016 and cleared the floor of Lok Sabha but lapsed along with 40 other draft legislation including a bill banning triple talaq and Citizenship (Amendment) Bill, 2016 due to the adjournment sine die of the parliament session.
A very similar bill was then introduced by Dr. Harsh Vardhan during the proceedings of 17th Lok Sabha and moved for consideration to the Rajya Sabha on 19th November 2019.
The Statement of object and reason reads that the purpose of the bill is to clamp down on “unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes.” and address a “Widespread condemnation of commercial surrogacy in India” The same further states that the legislation sought to implement the recommendation of the 228th Law Commission.
The Surrogacy Bill, 2019 was widely criticized for reasons, such as excluding those in non-heterosexual relationships, or prospective single parents. After recommendations made by a Rajya Sabha Select Committee, widowers and divorcee women were included in Bill’s ambit The Union Cabinet approved the Surrogacy (Regulation) Bill, 2020 after incorporating recommendations of a Rajya Sabha Select Committee.
Eligibility of parents
Before the amendment by the standing committee, the bill proposed to ban commercial surrogacy and provide for altruistic surrogacy only for heterosexual couples who were married for not less than 5 years and had trouble conceiving due to medically proven infertility under section 2 of the bill. The surrogate mother has to be a close relative who has at least one child. The objective was to ensure that the surrogacy remains altruistic.
After the applying the recommendations only ethical surrogacy to Indian married couples, Indian-origin married couples and Indian single woman (only widow or divorcee between the age of 35 and 45 years) will be allowed on fulfilment of certain conditions.
The criteria of age is not altered. The man should be between 23-50 years of age while the woman must fall between the age limit of 26-55 years.
Couples who have natural-born children or adopted children are ineligible. The exception being if the child that they do have is either “mentally or physically challenged or suffers from life-threatening disorder or fatal illness with no permanent cure.”
Rights of the surrogate child and Punishment for violation of provisions
The Bill provides for a National Surrogacy Board to be instituted at a Central Level.
It contains a certain provision for the right of the surrogate children including the naturalization of the child. Any child born out of such procedure would be deemed to be, for all intent and purposes, the biological child of the intending couple. In cases of medical complications, an abortion of the surrogate child would be allowed and would require written consent of not only the surrogate mother but also the authorization of the pre-mentioned Board compliant with the Medical Termination of Pregnancy Act, 1971.
The punishment prescribed for violation of any clause of this bill is rigorous imprisonment for ten years or a fine up to 10 lakh rupees for acts such as undertaking or advertising commercial surrogacy, exploiting the surrogate mother, abandoning, exploiting or disowning a surrogate child and selling or importing human embryo or gametes for surrogacy. However, history is proof that merely imposing a brutal punishment has seldom worked in the favour of the state, until and unless awareness and a precedent of delivering swift justice aren’t there.
Critical analysis of the provisions
There can be a case made in favour of the provisions of the bill. It can be said that what this bill does is that it stamps out the exploitative trade as peddled by the press not only in India but countries such as the U.K. or U.S.A. as well. The stories one hears are either that of exploitation of the surrogate mother or misuse of the parents to be. Previous reports have established that in the past surrogates have been subjected to horrendous conditions but that is not the case in altruistic surrogacy.
There are still riders attached to this scenario as the definition of “close family” is left on the discretion of the National Surrogacy Board. This has not been defined in the act and this deficiency can be exploited by the middlemen in this trade. Can a close relative be an immediate family member? Can the close relative be a friend who the person considers a part of the family defined? These questions are left unanswered by the government.
There is also a stereotype that this is a tool favoured by the rich, upper class “junta”, those who do not want to waste their time or their body. An orthodox view is that surrogacy is against Indian ethics and the more regulations that are put on it, the better. Even though the Hindu God of War, Kartikey was a surrogate, born of Shiva and Paravati through Ganga. There are several other notable instances including the birth of the Kauravs or Drona or son of Hanuman.
Furthermore, the provision of “heterosexual couples” is violative of the basic human right to raise a family. It explicitly excludes the LGBTQ+ community and views them to be less than human. Single people and those in a live-in relationship are also removed from this ambit further reinforcing the patriarchal set-up and denying the citizens a basic human right. Foreign nationals would also be unfavourably affected by this bill. The blanket ban on egg donations potentially to check to traffic will not be of much help because if the female is sterile in a couple they would not be able to undergo the process of Surrogacy.
With COVID-19 wrecking the economy and creating mass-unemployment people are flocking towards unconventional means of employment to support their family. There have been multiple reports of women seeking to become egg donors in Hyderabad and the sufferings of those abandoned to live in hospital in Gujarat. Merely banning commercial and allowing altruistic surrogacy creates a two-pronged diaspora. First, by denying women to indulge in commercial surrogacy there will be a substantial loss of livelihood especially for the poor women who would rather than working in a windowless factory would have had the option to work in a relatively safer space especially when the world is going through a massive recession. Furthermore, the basic assumption of altruistic surrogacy hinges on the availability of close relative, a very important relationship which has been left on the discretion of the National Surrogacy Board.
The demand of surrogacy and the alternative routes a childless person could take to obtain their little one have not been addressed thereby forcing this market to go underground creating unfavourable conditions including a black market for surrogacy thereby reducing oversight and increasing exploitation and loss of revenue to the Government which may not be the biggest drawback but when taken collectively it is sufficient enough to make the bill worthy of addressing again.
The bill also demonizes children born with a disability as they are an exception to the provision allowing parents to a child with a disability to undergo surrogacy after taking requisite permission. Being a nation that already is a thousand steps behind in reformative thinking among its masses, this will in a way provide legitimacy to the age-old belief of people that a child with a disability is worth nothing.
In case a need arises for abortion, then the procedure established in the Medical Termination of Pregnancy Act, 1971 is to be followed then authorization of the appropriate authority need to be taken. The bill does not provide any stipulated time limit therefore there is no compulsion on the board to provide for the same and can keep the people waiting as long as they desire.
All things being said and done, even the most vocal advocates against the bill would not deny the need for such legislation. A more thought out bill is very necessary especially for those places in India where “baby farms” are a reality. A poor Indian woman is amongst the most voiceless of India’s citizens, there are no songs sung for her, no parades are thrown, no leaders voicing her struggle in the hallways of the Parliament. The idea behind this bill could have protected her to some extent. Al Jazeera once documented how the exploitation of the Indian women in commercial surrogacy and stated that even if they did most of the heavy lifting the fertility clinics or the middlemen pocketed more than 50 to 75 per cent of the promised amount.
This bill damages more than what it seeks to accomplish by completely ‘blue-pencilling’ a movement contrary to utilizing the law to properly manage the situation. This law needs a more precise hand to not just advantage the surrogate moms but the forthcoming parents, and last but not the least, the child/s conceived from surrogacy.
The Government faces a conundrum. It needs to address the exploitation of women and also answer the question that ‘if this ‘exploitation’ stops, then how will they survive?’ Even if the bill curbs the exploitation where do these women go?
ABOUT THE AUTHOR(S)
Sachin Bhatnagar is a third-year law student at Dr Ram Manohar Lohiya National Law University.
Shreya Shrivastava is a third-year law student at Dr Ram Manohar Lohiya National Law University.
In Content Picture Credit: LawLex.org