The lacunae in Surrogacy Bill

It is estimated that around 15% of couples in the ideal age for reproduction are affected by infertility. World Health Organisation (WHO) estimates the overall prevalence of primary infertility in India between 3.9 and 16.8%. The Surrogacy (Regulation) Bill recently passed by the Lok Sabha prohibits commercial surrogacy but makes allowance for altruistic surrogacy. It has stirred a big debate around the State’s intervention in reproductive autonomy and women’s rights.

The bill mandates a ‘certificate of essentiality’ and a ‘certificate of eligibility’ for the intending couple. The certificate of eligibility to the intending couple is issued if the couple — (i) has Indian citizenship and has been married for at least five years
(ii) is in the age range of 23 -50 (wife) and 26-55 (husband)
(iii) has no surviving child (biological, adopted or surrogate, mentally or physically challenged or fatally ill children not included)
(iv) other conditions that may be specified by regulations. While these rules may be countered with arguments that promote adoption, the State should not interfere in how individuals choose to expand their families.

While altruistic surrogacy is still legal in India, it is either banned or is not regulated in most neighbouring countries. After widespread reports of Indian women travelling to Nepal, and the subsequent imposition of stricter visa guidelines for foreigners commissioning surrogacy in India, the Supreme Court of Nepal ruled against commercial surrogacy in the country in 2015.

The UN Special Rapporteur on the sale of children, child prostitution and child pornography has addressed the issue and highlighted the lack of regulation over commercial surrogacy. He called on all the countries to adopt legislations to protect women and children’s rights, and development and implementation of international standards.

In accordance, India needs to address the following:

1)The bill does not have a similar position on surrogacy as outlined in the Assisted Reproductive Technology (Regulation) Bill-2017. The bill does not support an integrated approach towards the use of assisted reproductive technologies in the country.

2) In the definition of “infertility”, the bill excludes women who can conceive but are unable to carry children in that particular period due to numerous reasons that may affect successful pregnancies. In some other countries that allow altruistic surrogacy, the medical conditions that may afflict women are broader and well-defined.

3) The bill includes a sub-clause for the National Surrogacy Board to define ‘any other condition or disease’. For a robust implementation, this must be made a part of the parent law.

4) A part of the certificate of essentiality in the bill outlines the following conditions— (i) a certificate of proven infertility from the couple obtained from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a magistrate’s court. However, the bill lacks any review or appeal procedure if an application is rejected.

5) The surrogate mother has to be a “close relative” of the intending couple. However, the nature of the relationship is not defined.

6) The couple should be Indian citizens and married for at least five years. This restricts the couple’s ability to decide the size of the family and plan. Why must a couple wait for five years?

7) Imposing “altruistic surrogacy” carries the assumption that these cannot be exploitative or coercive. By providing the option of commercial surrogacy, there is at least an option for the imposition of stringent legal provisions. Monitoring altruistic surrogacy will prove difficult. Families can exploit women and coerce them to be a surrogate for close relatives.

The fact is that women who opt for being surrogate mothers come from disadvantaged backgrounds. Legalising commercial surrogacy provides avenues for preventing coercion or exploitation. Legal counselling on consent, on the implications on the surrogates’ lives, access to remuneration, nature of the relationship with the child, etc. can be envisioned.

This bill, however, violates the fundamental rights of surrogate mothers and potential parents. The banning of commercial surrogacy will only make it more discreet and underground, putting a lot of women under risk.

(The author is Senior Technical Advisor, Advocacy and Accountability at International Planned Parenthood Federation, South Asia)