Surrogacy: revisit the Bill

With the Surrogacy (Regulation) Bill getting the Lok Sabha’s nod during the Winter Session, the field of IVF and Surrogacy has witnessed a major milestone. The Bill is aimed at safeguarding the rights of unfortunate surrogate mothers renting their wombs. It bans commercial surrogacy but allows altruistic surrogacy, where women can legally carry someone else’s child if no financial assistance (other than medical cost and insurance), favour or coercion is involved.

The Bill says, anyone except legally married Indian couples who otherwise would not be able to conceive will be barred from opting for surrogacy. Moreover, only a close relative can become a surrogate for “medically proven infertile” couples. Primarily, the proposed law needs to aim at providing support to all infertile Indian married couples who want to avail of ethical surrogacy.

The Surrogacy Regulation Bill was introduced in the Lok Sabha in 2016. It was referred to the Parliamentary Standing Committee on Health and Family Welfare in January 2017. After that, the Parliamentary Standing Committee held various meetings with the stakeholders, the central government ministries, medical professionals, NGOs, researchers, lawyers, commissioning parents and surrogate mothers to receive their suggestions. The Standing Committee report was tabled in the Rajya Sabha and Lok Sabha in August 2017.

The 228th report of the Law Commission of India also recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting a suitable legislation. The provision for a jail term of up to 10 years and a fine of Rs 10 lakh for violations such as abandoning a child and choosing commercial surrogacy have been included. It is a big decision.

The Bill comes against the backdrop of reports of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets around intermediaries importing human embryos and gametes were reported. There were surrogates being harassed because of the lack of regulation. In the Bill, altruistic surrogacy is legalised and commercial surrogacy is criminalised.

The Bill is expected to be tabled in the Rajya Sabha during the ongoing Budget Session. Around the first half of the year, it is also expected to receive the President’s assent and become law. It is promising to note that once it is put into action, the Surrogacy (Regulation) Bill proposes to regulate surrogacy in India by establishing a National Surrogacy Board and State Surrogacy Boards.

This will help in fast securitising of cases which need IVF treatment. These boards would strictly regulate and check unethical practices. However, experts are of the view that there should not be any ban on commercial surrogacy for those who genuinely need a surrogate to carry their biological child.

With nearly 10,000 surrogacy cycles carried out annually in the country, the proposed law will narrow down options for those parents wanting children. It will be an unfortunate event for those who genuinely need a surrogate but are unable to get a relative and are not able to have a commercial surrogate, either, because of the law.

Normally, even close relatives do not come forward to be surrogates. In that case, putting a prohibition on commercial surrogacy would restrict the scope and benefits of surrogacy and the law will prove to be a regressive move rather than a beneficial one.

There are other concerns as well. The regulation may curtail exploitation of poor surrogate women, however, it is also feared that it will lead to breakdown of marriages and may even promote second marriages.

Indian society is still very conservative. Close relative do not offer to be surrogates. Due to this, several childless couples opt for surrogacy through the commercial route. It is also true that IVF and surrogacy have become powerful ways of saving marriages of childless couples. What option will men have otherwise in a society where having children is highly valued? Many will probably go in for a second marriage to have a child.

Yet another concern is the adverse impact on reproductive medical tourism that the law will have. The Centre’s move is a welcome step, but concerns flagged by experts also need attention so that the law creates a win-win situation for all stakeholders, such as childless couples and surrogate mothers. Hence, if the government revisits the provisions once again, it will certainly be a welcome move.

If the Bill is passed by the Rajya Sabha in its current form during this session, the proposed regulation will not yield desired results and may actually provide extra space for unethical practices.

(The writer is a Gynaecologist, Obstetrician and IVF Expert, Nurture IVF Centre)