Surrogacy is the process of having a child for a couple who wishes to have a child but is unable to do so due to infertility or another issue carried out by another woman. In India, this has been a contentious legal matter. For this, the Surrogacy (Regulation) Bill, 2020 was introduced in the Parliament. Under the Bill, Altruistic surrogacy is permitted but Commercial surrogacy is prohibited. Altruistic surrogacy does not include paying the surrogate mother any money other than covering the surrogate mother’s pregnancy-related medical costs and insurance. Commercial surrogacy is the practice of using a surrogate mother to carry a child for monetary benefit (in cash or in-kind benefits).
Features of Surrogacy (Regulation) Bill, 2020:
- The Bill suggests establishing a National Surrogacy Board at the national level, as well as State Surrogacy Boards and the competent authorities in the various states and Union Territories.
- It suggests that divorced women and widows can also make use of its provisions in addition to infertile Indian couples, and it permits any “willing” woman to be a surrogate mother.
- The initial version of the proposal only gave 16 months of surrogate mother insurance coverage; it is now being offered for 36 months.
- It will be illegal to use human embryos and gametes for commercial surrogacy.
- Before moving forward with surrogacy, it becomes required for the couple to get a Certificate of Eligibility as well as a Certificate of Essentiality.
- Additionally, it states that intended couples must never, under any circumstances, leave the child born through surrogacy.
- All privileges and rights accorded to a natural child shall also apply to the infant from surrogacy.
- The Bill also aims to control how surrogacy clinics operate. To perform surrogacy or related operations, all surrogacy clinics in the nation must be registered with the relevant authority.
- Such offences are punishable by a fine of up to 10 lakh rupees and a term of jail up to 10 years.
Need and objectives of the Surrogacy (Regulation) Bill, 2020:
- Rented Wombs: With its cutting-edge technology and affordable rates, India has become a global centre for infertility treatment, drawing patients from all over the world. Soon enough, socioeconomic inequalities gave disadvantaged women the choice to “rent their wombs.“
- Misuse of surrogacy: As soon as people learned that these wombs were available, demand increased as well. Untrustworthy middlemen established themselves and started taking advantage of these women.
- To stop sex selection: Consider the fact that there are unregulated IVF clinics all across the nation and that sex selection was occurring in both directions due to unregulated surrogacy.
- To stop unethical behaviour: Bill aims to stop unethical behaviour connected to sex selection and surrogate exploitation.
- To regulate: After arriving in India, couples would purchase wombs and bring babies home. Therefore, it is now more important than ever for the nation to regulate both surrogacy and assisted reproductive technology (ART).
- To stop the exploitation: In 2014, an egg retrieval procedure went wrong and left a 26-year-old woman dead. Ovaries are stimulated during ART in order to extract eggs. Unmarried women sell their ovaries to survive economic hardships.
- Several instances of misuse: A Japanese couple started the process with a Gujarati surrogate mother in 2008, but they split up before the baby was born and none of them wanted the child. In another case, an Australian couple hired a surrogate mother in 2012, and they arbitrarily picked only one of the twins.
Eligibility Criteria for Surrogacy Procedure:
The following documents should be issued to the intended couple by the relevant authority:
- Certificate of Essentiality
- Certificate of Eligibility
A Certificate of Essentiality will be given, If the following criteria are met:
- A District Medical Board certification confirming the intended couple’s proven infertility for either one or both members;
- A Magistrate’s court order granting parental rights and custody of the surrogate kid;
- Insurance protection for the surrogate mother’s postpartum birth problems for sixteen months.
A Certificate of Eligibility will be given, If the following criteria are met:
- The wife’s age must be between 23 and 50, and the husband’s age must be between 26 and 55. The couple must be Indian nationals and have been married for at least five years.
- The couple has no living children (biological, adopted, or surrogate), excluding any children who are physically or intellectually challenged or have a fatal illness; and any other circumstances that may be required by law.
The surrogate mother must meet the following criteria in order to acquire a certificate of eligibility from the relevant agency:
- A close family member of the prospective couple;
- A married mother of one’s own child;
- The age range of 25 to 35;
- She will only ever be a surrogate once; and
- Possessing a certificate proving one’s physical and mental readiness for surrogacy
- The surrogate mother is also not permitted to provide her own gametes for surrogacy.
Issues in Surrogacy (Regulation) Bill, 2020:
- Surrogacy disrupts the relationship between the mother and child, commodifies the child, meddles with nature, and exploits underprivileged women in developing nations.
- The rights to parenthood and reproduction are included in the right to life. Consequently, the state shouldn’t determine how to parent.
- In general, pregnant women receive relatively little compensation, with ART clinics taking a substantial portion.
- In most cases, surrogacy involves gender selection, which is prohibited in India. ART clinics are operating the sex determination and abortion industries illegally under the pretext of surrogacy.
- Surrogacy poses a major threat to women’s health and numerous health concerns to the unborn child are associated with surrogacy, including genetic problems, low birth weight, membrane damage, etc.
- Those who identify as LGBTQ+, couples in-live relationships and single parents are however denied this possibility under the proposed legislation.
- Even in cases of in vitro fertilisation, such as in Catholicism, many religions forbid surrogacy. It holds that having a child is a gift, not a right and that using artificial means to have one is morally unethical.
Note:
Surrogacy (Regulation) Bill, 2020, strives to stop the exploitation of women, particularly those who live in remote and tribal areas. It forbids parents of biological or adopted children from ordering children through surrogacy. It guarantees “legal and clear” parenthood for children born through surrogacy. Though apart from surrogacy, the adoption of orphaned children is another alternative for childless couples which should be promoted.