Surrogacy Bill 2019 in Rajya Sabha: What is it and why is it problematic?

The Surrogacy (Regulation) Bill 2019, which seeks to ban commercial surrogacy, is now being taken up in the Rajya Sabha in the ongoing Winter Session of Parliament.

The bill was passed by the 17th Lok Sabha by a voice vote in the Budget Session and moved for consideration to the Upper House by Health Minister Harsh Vardhan on November 19.

Surrogacy is defined as a practice where a woman bears a child for an intending couple, with the intention of handing over the child to them after birth.

The surrogacy bill proposes a complete ban on commercial surrogacy – where the procedure is undertaken for monetary gain – but allows altruistic surrogacy, which involves no monetary compensation to the surrogate mother other than medical expenses and insurance coverage during the pregnancy.

Why was the bill required and what makes it contentious, let’s find out:

Why was such a bill needed?

While tabling the bill, Harsh Vardhan had said certain “malpractices” were happening in commercial surrogacy, leading to exploitation of surrogate mothers. “In the absence of regulation in India, the country has emerged as a surrogacy hub for couples from different countries," he said.

He cited various reports which suggested that over 3,000 surrogacy clinics are operating in the country and over 2,000 foreign babies are born in these every year.

Lack of legislation on surrogacy has also led to unethical practices, exploitation, abandonment of children born out of surrogacy and import of human embryos and gametes.

The first attempt at regulating surrogacy was made by the Indian Council of Medical Research (ICMR) in 2005 to monitor clinics that treat infertility (such as IVF clinics) and offer surrogacy services. For this, ICMR had formulated the National Guidelines for Accreditation, Supervision and Regulation of ART (Assisted Reproductive Technology) Clinics in India.

This had led to the drafting of the ART Bill in 2008, 2010 and 2014, but it was never passed by Parliament.

In 2009, the law commission took the matter up, recognising the need of providing rights to both the parties involved in surrogacy as well as to regulate ART clinics. The law commission had recommended allowing only altruistic surrogacy and a ban on commercial surrogacy.

In 2016, the Surrogacy (Regulation) Bill was introduced. In 2017, it was examined by the Parliamentary Standing Committee on Health Family Welfare, which suggested wholesome changes and that the ART Bill should be brought first since "there are no separate surrogacy clinics as such  and that "generally ART clinics offer surrogacy services as well". However, most of these changes weren’t incorporated and the bill was reintroduced in 2019.

What does the current bill entail?

The bill bans commercial surrogacy and the sale or import of human embryo for the purpose of surrogacy.

It proposes mandatory registration of ‘surrogacy clinics’ – those conducting the procedure in any form.

Besides, the bill has warranted ‘eligibility criteria’ for the surrogate mother as well as for the intending couple.

The couple must have a ‘certificate of essentiality’ and from the concerned authority which would ensure that the couple is infertile, give them the custody of the surrogate child, and cover medical expenses of the surrogate mother.

For a couple to be able to adopt, they have to be Indian citizens and married for at least five years – the wife belonging to an age group of 23 to 50 years and the husband belonging to age group of 26 to 55 years.

In addition, the surrogate mother needs to be – i) a close relative of the intending couple; ii) a married woman having a child of her own; iii) 25 to 35 years old; iv) a surrogate only once in her lifetime; and v) possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Contravention of the bill can invite imprisonment up to 10 years and fine up to Rs 10 lakh.

Why is it problematic?

The bill is facing blockage in the Upper House for various reasons. For instance, BJP leader Suresh Prabhu said, “(Not having) Indian citizenship should not deprive, people of having surrogacy... because there could be cases where an Indian woman or man is married to a foreign citizen not residing in India."

Prabhu also asked as to why surrogacy should be restricted to one child only. He was also not in favour of the condition that couples should have been married for at least five years for them to opt for surrogacy, saying if doctors can certify in a few months of marriage then why should the couple wait for so long.

Another issue was that of the “close relative” clause for surrogate mother as it could lead to coercion and further exploitation of women due to family pressure, given the social, emotional and ethical dynamics involved. It may even lead to domestic violence. Plus, the definition of close relative is not defined in the bill.

SP leader Ram Gopal Yadav, who was the chairman of the standing committee in 2017, is of the view that the close relative clause for choosing a surrogate can lead to property disputes later on and other related issues in a family.

Referring to some clauses in the new bill as those belonging to the “Victorian Era”, Congress MP MV Rajeev Gowda said, "The complicated rules, regulation and procedures in the bill make it practically impossible to use surrogacy effectively as a tool for those who want to."

Disagreeing with the clause that demands the couple to certified as ‘infertile’, Gowda said, "The minister [Harsh Vardhan] himself is a doctor and knows that there are reasons proven, which are beyond infertility such as absence of a normal uterus, recurrent miscarriage etc, where it is unsafe for a woman to bear a child."

He asserted that these considerations should also be looked into and scope should be expand to cover other inabilities.

In addition, limiting only heterosexual married couples to opt for surrogacy is restrictive, and maybe even regressive, as it leaves out widows, divorcees, live-in partners, single parents and homosexual couples and LGBTQ+ people.