Bill No.257 of 2016 i.e. “Surrogacy (Regulation) Bill, 2016” was tabled in the Lok Sabha in November 2016. It proposed a complete ban on commercial surrogacy, restricting ethical altruistic surrogacy to legally wedded infertile Indian married couples only, married for at least five years. A certificate of proven infertility of either spouse or couple from a Medical Board is mandatory. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning surrogacy. Only close married blood relatives, who must have herself borne a child, and is not an NRI or a foreigner, can be a surrogate mother once in a lifetime. Indian couples with biological or adopted children are prohibited to undertake surrogacy. Only medical expenses will be allowed to be paid. Commercial surrogacy, among other offences, will entail imprisonment jail term of at least ten years and a fine extending to rupees ten lakhs. Compensated gamete donation has been banned. Surrogacy clinics will require mandatory registration. National and State Surrogacy Boards shall advise, review, monitor and oversee implementation of the new law.
In January 2017, the Rajya Sabha Chairman referred this legislation, as introduced in the Lok Sabha, to the Standing Committee on Health and Family Welfare. This Parliamentary Committee by Report 102 presented on August 10, has recommended beneficial major sweeping changes. Major stake holders, experts, Government representatives of various Ministries and professionals lent their views with extensive interactions with the Committee. The changes recommended are laudable, practical, beneficial and harmonious to rights of parties.
The major recommendations of the 88 page report can be identified in nine features. Firstly, “compensated” instead of “altruistic” surrogacy is proposed with amount of adequate and reasonable compensation to be fixed by authorities, besides “mandatory appointment of a competent authority” to obtain full informed consent of surrogate mothers”
Secondly, the Committee recommends that surrogacy can be availed off by live-in couples, divorced women, widows, NRIs, PIOs and OCI Card holders to avoid prejudice and discrimination but, foreign nationals cannot commission surrogacy in India.
Thirdly, recognising “the fundamental right to reproduce to have a child as a person’s personal domain”, five year waiting period thought to be “arbitrary, discriminatory and without any definable logic,” has been recommended to be one year with the right to go for second chance at surrogacy in case of any abnormality in the previous child.
Fourthly, holding the limiting of the practice of surrogacy to close relatives as “non-pragmatic and unworkable”, the Committee has recommended that “both related and unrelated women should be permitted to become a surrogate.” Fourthly, the Committee further recommends that “screening of intending couple for medical assessment, social economic background, criminal records and related checks before commissioning surrogacy.
Fifthly, the requirement of “a certificate for infertility from an appropriate authority” has been recommended to be substituted by medical reports.
Sixthly, the Committee recommends practical changes in the constitution of the National and State Boards of Assisted Reproductive Technology for resolution of legal implications and maintenance of appropriate records.
Seventhly, the Committee suggests that “sex selective techniques” in surrogacy should be harmonised with existing laws and since “surrogacy and related procedures are not criminal activities, punishment should be commensurate with the level or degree of infraction committed”.
Eighthly, amongst miscellaneous recommendations, the Committee recommends written registered surrogacy agreements, adequate insurance coverage for unborn child, provision of a birth certificate with names of commissioning parents, establishment of an independent agency with quasi-judicial powers for resolution of disputes of parties involved in surrogacy, and mandatory DNA testing for genetic determination to determine parenthood.
Lastly, the Committee observed that the Assisted Reproductive Technologies (ART) Bill, 2008, has been revised in 2010 and 2014 is lying with the Government and should be brought forth before the Surrogacy Regulation Bill, 2016.
Restricting limited conditional surrogacy to married Indian couples and disqualifying other persons on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality. Right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood and it is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally, cannot interfere. Moreover, infertility cannot be compulsory to undertake surrogacy. A certificate of “proven infertility” is a gross invasion of the right of privacy which is part of right to life under the Constitution. All these legal maladies find redressal in the erudite Committee report.
The Indian Council for Medical Research (ICMR), working under the Ministry of Health and Family Welfare, finalised the National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology (ART) Clinics in India, 2005. It stipulated that there shall be no bar to the use of ART by single women who would have all the legal rights and to whom no ART clinic may refuse to offer its services for ART. By anomaly, single men too could claim this right. These guidelines have not been rescinded till date.
Anomalous and inconsistent as it may seem, in the matter of Inter-Country adoptions, the Government has a diametrically opposite policy. It statutorily propagates fast-track inter-country adoptions from India for foreigners. The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) allows a Court to give a child in adoption to foreign parents irrespective of the marital status of such a person. The latest guidelines governing Adoption of Children notified on 17 July 2015, have streamlined Inter-Country Adoption procedures, permitting single parent adoptions with the exception of barring single male persons from adopting a girl child.
Surrogacy in vogue for over past twelve years has been shut down overnight. Tripartite constitutional fundamental rights of stakeholders stand violated in the process. A right to reproductive autonomy and parenthood, as a part of a right to life of a single or foreign person, cannot be circumvented.
The possible Government logic banning foreign surrogacy to prevent its misuse, seems counterproductive. Barometers of domestic altruistic surrogacy will be an opportunity for corruption and exploitation, sweeping surrogacy into unethical hands in an underground abusive trade. Relatives will be generated. Surrogates will be impregnated in India and shifted to permissible jurisdictions with lax laws. The ends will defeat the means. Surrogacy may still flourish with abandon. Sweeping it under the carpet will not help. Ignoring its prevalence cannot extinguish it at a stroke. The Parliamentary Committee recommendations taking due note have done very well. The suggestions must find favour. A beneficial surrogacy law is the need of the hour.
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