SURROGACY REGULATION BILL 2016 (CRITICAL ANALYSIS AND SUGGESTIONS)

SURROGACY REGULATION BILL 2016 (CRITICAL ANALYSIS AND SUGGESTIONS)

Surrogacy Regulation Bill 2016, was recently cleared by the Union Cabinet, is set to be introduced in Parliament soon.[1] There has been a severe backlash and protests regarding the bill and being cited as discriminating and draconian. For this, we need to see the history of the surrogacy in India, India legalized commercial surrogacy in 2002[2], it gradually gave rise to the expansion of surrogacy industry leading to foreign surrogacy requirements and fertility tourism, it grew so much that commercial surrogacy was banned in 2015.[3] Booming surrogacy industry, abandonment of children through surrogacy, and the gross exploitation of the women who were compelled to become surrogates numerous times in order to back their family led to the necessity of the bill.



[1]  Surrogacy bill gets the Cabinet nod, Available at – http://www.thehindu.com/news/national/Surrogacy-bill-gets- the-Cabinet- nod/article14591267.ece.
[2]  A setback for surrogacy in India? , Available at – http://www.thehindu.com/opinion/op-ed/a-setback-for-surrogacy-in-india/article7927730.ece.
[3]  India bans foreigners from hiring surrogate mothers, Available at –  https://www.theguardian.com/world/2015/oct/28/india-bans-foreigners-from-hiring-surrogate-mothers.

Pivotal features of the Bill –

1.No Surrogacy Allowed for Homosexuals, Single Parents, Couples in live-in relationships, Foreigners, Couples with Children.

2.Couple who are opting for surrogacy must be married for at least 5 years.

3.Either of the Couple must be proven infertile.

4.Only Indian Citizens; even NRIs are not allowed.

5.Age limit: 23-50 for females and 26-55 for males.

6.Women can be surrogate only once and a married couple are allowed to have only one surrogate child.

7.Concept of “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the infertility situation of the couple.

8.Egg donation is also banned.


Critical Analysis –

The main intention of the bill was to prevent the exploitation of the women involving surrogacy, but some of the clauses of the bill had created outrage among medical community as well as the general public. For example, the necessity of only a relative being a surrogate mother. This is briefly the concept of altruistic surrogacy[4] given in the bill which talks about the necessity of only a relative being a surrogate mother. However, it largely confines both potential surrogate mothers as well as the couple opting for surrogacy because it is really difficult to find a willing relative who would bear his/her child in her womb. This confines not only the possibility of the surrogacy to a large extent but also give a hard time to the couples who have surrogacy as their last option.

However, adoption is always been an another choice but the process of adoption is long and arduous. But the desire of “real heir” in the Indian society put personal stigma upon the child adopted throughout his lifetime.

  • No Surrogacy for homosexual Couples

One of the most contentious purpose of the bill is the obtrusive prohibition on surrogacy privileges of homosexual couples. This is the first occasion where the government’s straightforward homophobia has moved into the open. Sushma Swaraj obviously expressed that surrogacy for homosexuals is against “Indian ethos”, despite the fact that homosexuality has been continually said in different Indian writings.[5] Presently, this boycott could be interpreted as negligible after the law against homosexuals (Section 377 against “unnatural” intercourse[6]).

This is clearly an immense foreswearing of equity to these eccentric groups. Moreover, since as given in the marriage laws that only heterosexual couples are permitted to get married; the express boycott of surrogacy to homosexual couples implies two exceptional disheartening things: one, since this is the first run through there has been an unequivocal expressing of “homosexuality”, this exclusively uncovers that the legislature is not in any case open to the further thought; and two, the government is practically expressing that the group should cease to exist, and they have no rights with respect to their sexuality.



[4]  Surrogacy Laws of India: Defined, Available at – http://surrogacylawsindia.com/index_inner.php.
[5]  Supermom of State, Sushma Swaraj, gifts India a sanskari Surrogacy Bill Available at –     http://www.dailyo.in/politics/surrogacy-bill-sushma-swaraj-reproductive-rights-womens-rights-commercial-surrogacy-celebrities-lgbtq-single-parent/story/1/12559.html.
[6]  Section 377, Indian Penal Code.

 

  • Targeted towards “Baby Farms”

 

The bill is targeted to the specific places in India; for instance, Gujarat, where ‘baby farms’ exist, i.e. underprivileged women are gathered together in huge numbers and given out as surrogates to potential guardians.[7] Here, there is an oddity which the administration needs to handle where women are being misused as child transporters and this “abuse” needs to stop. In this industry, agents gain a huge part from the money paid by the guardians, and only around 25% is given to the surrogate mother.[8] However, the fact that the bill tend to protect these women, the problem arises as to how would these women be able to sustain their family as surrogacy was their only earning and there seems a dubious approach from government regarding the same.

  • More harm to Surrogate mothers

The bill seems to accomplish more harm rather than providing provisions against abuse of these women. It is made to control the abuse of women and trafficking of children; but again, it displays the general approach of a state banning or controlling an action absolutely, rather than taking a glance at approaches to utilize laws to manage and enhance the circumstance.

Moreover, while most nations, particularly in Europe, permit only altruistic surrogacy, surrogate mothers are not constrained to relatives, and medicinal costs are secured. It can be said that despite the fact that India has not banned surrogacy totally (like Germany, France and Italy)[9], the laws should be re-looked so that they really look for the concerns of the surrogate mothers, potential guardians, and children conceived from surrogacy.

Gradually and consistently, the government is demonstrating genuine what was left inferred this while: homophobia, segregation towards non-hetero-standardizing relations, and a paternalistic authorization of social standards. The bill shows an absence of comprehension which should be given to a woman; that a woman ought to have the capacity to settle on choices where the matter is related to her body. There is no requirement for the government to be the “Big Brother”.



[7]    Gujarat – A hub of rent a womb industry in India, Available at – http://indianexpress.com/article/india/india-others/gujarat-a-hub-of-rent-a-womb-industry-in-india.
[8]    Surrogacy tourism India, Available at-  http://www.motherjones.com/politics/2010/02/surrogacy-tourism-india-nayna-patel.
[9]    Council of Europe rejects Surrogacy, Available at – http://europeanpost.co/council-of-europe-rejects-surrogacy.

The suggestions by the Author for the act are as follows:

 1. Agreements of surrogacy in acquiring a child through surrogacy should be held lawful.Compensation to be paid to the surrogate mother for her services.

2. The right to manage the pregnancy should be given to surrogate mother which should also include the voluntary termination of the pregnancy.

3. The surrogate mother should not have any powers of renege in the contract and should not keep the child after when the child is born.

4. The right to specific performance of the contract should be given to both the intended parents and the surrogate mother.

5. The intended parents are not required to go through an adoption proceeding; instead, the Act should provide for a simplified procedure whereby they are certified as the legal parents of the child.

6. State licensed agency should handle all the cases of surrogacy in well mannered way so as to avoid chaos.