India is a developing country. As a country who is focusing on advancing our nation to next level, be it, economies or otherwise, new bills are being passed which are supposed to take India a step forward. One such bill is The Surrogacy (Regulation) Bill, 2019.
WHAT IS SURROGACY?
Surrogacy is a contract between a woman who bears a child for another couple and the couple who wants to be the parents of that child who cannot or do not want to go through the process of the whole gestation period on their own. This is a new era, a different time and people don’t feel obligated to get married at an early age. Therefore, some couples get married later in their life which may hamper their chances of being a parent. This is one of the many factors why surrogacy is important. It is a gift of medical science which helps people become parents. Surrogacy does not come cheap, therefore, a lot of people all around the world come to India for surrogacy. This is because India comparatively is cheaper to afford. However, commercial surrogacy was banned in India in 2015.
Commercial surrogacy was banned in India. This is because although earlier both the parties of the contract could benefit, that is, couples got a child and the surrogate mothers got money, there still were many loopholes. The woman who become surrogates are generally from the lower economic class. They are not thorough with the knowledge with what they are getting themselves into. The middlemen or their spouses make them do it in order to profit. This leads to their exploitation since there’s no provision of legal counseling or psychological screening like in USA. Moreover, since many of these couples come from different countries or are NRIs or PIOs or OCIs there are issues concerning citizenship, nationality and rights of a child. Many of these parents after finding out that their child’s genetics don’t match theirs, abandon the child hence the child is forced to live as an orphan.
WHAT IS SURROGACY (REGULATION) BILL, 2019?
Then came the recent surrogacy bill which regulates surrogacy in who can do it and how it can be done. The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr, Harsh Vardhan in Lok Sabha on July 15, 2019. “The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.”
The Bill prohibited commercial surrogacy but allowed altruistic surrogacy. In this kind of surrogacy no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage is given during the pregnancy. There are only few purposes for which surrogacy is permitted. They are:
- for intending couples who suffer from infertility as per proven by medical evidences
- not for commercial purposes
- not for producing children for sale, prostitution or any other forms of exploitation and
- for any condition or disease specified through regulations
The intending couple could only be eligible for surrogacy when they have had provides a certificate of essentiality and a certificate of eligibility issued by the appropriate authority. Furthermore, a certificate of essentiality could only be issued upon fulfilment of some conditions, that is, a certificate of one or both members of the intending couple from a District Medical Board proving that they are infertile, an order passed by a Magistrate’s court of parentage and custody of the surrogate child, and an insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate. In the same way, the certificate of eligibility to the intending couple could only be issued when certain fulfilments could be given, that is,
- the couple must be married for at least five years
- the couple must be Indian citizens
- the age of the wife must be between 23 to 50 years and that of the husband must be between 26 to 55 years
- the intending couple should not have any surviving child (biological, adopted or surrogate), however, this would not include any child who is mentally or physically challenged or suffers from life threatening disorder or any kind of fatal illness
- and other conditions that may be specified by regulations
There are certain eligibility criteria for the surrogate mother too. The surrogate mother will also have to obtain a certificate of eligibility from the appropriate authority. They are:
- she should be a close relative of the intending couple
- she should be a married woman having a child of her own
- she should be between 24 to 35 years of age
- she can be a surrogate mother only once in her lifetime
- she should also possess a certificate of psychological and medical fitness for bearing the baby
When the Bill is passed and becomes an Act, the Central and State governments shall appoint one or more appropriate authorities within 90 days of it becoming an Act. There are certain functions that these appropriate authorities are expected to fulfill. They include granting, suspending or cancelling registration of surrogacy clinics, enforcing standards for surrogacy clinics, investigating and taking action against breach of the provisions of the rules and regulations. Surrogacy clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority. Through this Bill the Central and the State governments are expected to constitute the National Surrogacy Board and the State Surrogacy Boards. There are many functions that need to be performed by these boards once they come into action. Functions include advising the Central government on policy matters relating to surrogacy, supervising the functioning of SSBs and laying down the code of conduct of surrogacy clinics.
Who will be the legal parents of a child born out of surrogacy? Any child born out of surrogacy will be the biological and legal child of the intending couple. If one wants to abort the child during surrogacy then it would require the written consent of the surrogate mother and the proper authorization of the appropriate authority. The authorization as such passed must be parallel with the Medical Termination of Pregnancy Act, 1971. Also, the surrogate mother can withdraw from the surrogacy before the embryo is implanted in her womb.
OFFENCES AND PENALTIES
The Bill includes many offences which can occur in a surrogacy contract such as advertising commercial surrogacy, exploiting the surrogate mother, selling or importing human embryo or gametes for surrogacy and, abandoning, disowning or exploiting a child born out of surrogacy. There are penalties as laid down by the Bill. If anyone commits any of the aforementioned offences then he/she will face imprisonment up to 10 years and a fine up to 10 lakh rupees. The Bill also specifies other offences and the required penalties for the offences.
Author: Saumya Shreya,
National Law University and Judicial Academy, Assam (1st Year)