The Many Problems Of The Surrogacy (Regulation) Bill 2016

The Surrogacy (Regulation) Bill was tabled in the Parliament in 2016. No points for guessing what it addresses and regulates!

The question of surrogacy arises when one or both partners in a relationship are infertile, and want a child through another woman (known as the surrogate woman). The surrogate woman then hands over the child to the couple, legally speaking.

There are two types of surrogacy – traditional and gestational. One of these situations occurs when the surrogate mother’s egg is fertilised by either a sperm donor or the intending father. The other scenario occurs when the surrogate mother is just the ‘carrier’. In the latter case, it is either the intending mother’s egg or a third-party donor’s, and the father is either a third-party donor or the intending father.

The Surrogacy (Regulation) Bill has several problems.

Narrow Categories

To qualify as a surrogate mother, you have to be 25-35 years of age, be married and have a child of your own previously. Moreover, you should not have been a surrogate mother previously. So, if you are childless, widowed, divorced, unmarried, younger than 25 or older than 35, you cannot be a surrogate mother.

Even the Standing Committee on Health and Family Welfare, in their report, rightly agreed only to the restriction of women wanting to be surrogates more than once, as that opens the door for abuse and exploitation, mostly due to economic necessity. The rest of the restrictions, however, are much too narrow.

It is not by narrowing the criteria for women that you ensure they are not exploited, but through heavy regulation. All these regulations do is deny genuine couples from finding a proper surrogate mother by limiting the pool too much. It is indeed hard to find a woman that fits all the above-mentioned categories.

This Bill seems to carry the tone of someone who thinks that women not fitting in these categories are not sound enough to make decisions in their lives. Unfortunately, this tone is present throughout the Bill.

You can only be an intending couple if you are childless. Also, the intending couples have to be married for at least five years. They cannot have conceived in these five years either. This means that the intending couple’s age has to be in the range of 26-55 years (for the man) and 23–50 years (for the woman).

Perhaps, this could be argued as reasonable, except the fact that you would be ignoring the World Health Organisation’s definition of infertility which mentions a period of 12 months before evaluating the condition. In this context, as far as the protection of the surrogate mothers is concerned, there should be a reasonable timeline of 2-3 years, by conservative estimates. However, five years is much too long a wait (something that the Committee also agrees to). Such a long waiting period may actually encourage couples to not wait that long for surrogacy.

The intending couple can only be Indian. Legitimate foreign national couples are barred from availing of surrogacy. The logic behind this is that India’s medical tourism industry is worth $2 billion dollars, mainly due to the illegal exploitation of surrogate mothers by making them ‘baby-making’ machines.

However, even NRIs, Persons Of Indian Origin (PIOs) and Overseas Citizens Of India (OCIs) are disallowed, which the Committee finds to be a bit too extreme. After all, people of Indian origin must be separated from ‘other’ foreign nationals with the explanation that the diaspora has been ‘engaged with’ by the government.

I absolutely do not agree with this reasoning that just because they are of ‘Indian origin’, they should be allowed to avail of surrogacy. Do NRIs never commit a crime? Both – legitimate foreigners and NRIs – should be allowed to avail of this, in my view.

Single parents are also disallowed – and this is very rigid, because no other country mandates marriage as a requirement for surrogacy. Same-sex couples are also not allowed. Even people in live-in relationships are, in all likelihood, not allowed to have surrogate children.

Another unwise policy decision is the Bill’s definition of infertility (Section 2 Clause 2p) which states – “Infertility means the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception.” 

What the definition leaves out from its purview is that there are various reasons why couples want surrogacy, one of which is infertility. There are other situations which may prevent a couple from having a baby, like genetic disorders, age, endometriosis, multiple miscarriages, diabetes, heavy periods (due to fibroids, cervical cancer), etc. Why are people suffering from these ailments not protected by the Bill?

This Bill bans commercial surrogacy (done for money) and only allows altruistic surrogacy (done out of the goodness of heart). In altruistic surrogacy, only medical expenses and insurance coverage of the surrogate mother by the couple are covered. Again, this is something which is extremely narrow in its coverage. Most countries also provide for the payment of losses in earnings during the mother’s pregnancy (as separate from a maternity leave), legal fees, maternity clothing, nutrition charges and post-delivery care. Perhaps, covering the expenses of the surrogate mother under all these items would be better?

Finally, under Section 4 Clause iii b (ii), only a ‘close relative’ can be a surrogate mother. What exactly is meant by a ‘close relative’? Does it leave out first cousins? There’s no explanation in the Bill.

Generally, the logical assumption is that if a ‘close relative’ is a surrogate, it is likely that there will be custodial issues, psychological issues, genetic deformations (especially if she is a close relative of the man), inheritance issues, etc. In fact, the Committee recommended that the criteria of being a ‘close relative’ should be removed to allow both related and unrelated women to become surrogates.

The Committee’s recommendation makes sense because even if everything goes well, someone who is from the same family as the couple will then have to live with the child that she carried. This may cause mental stress for her and also lead to complicated relationships in the family.

Clearly, the categorisation of a lot of things is much too narrow in this Bill.

Hyper Subordinate Legislation

The Bill requires three things for surrogacy – a certificate of essentiality, a certificate of eligibility for the couple and a certificate of eligibility for the surrogate mother from the appropriate authority (which is the executive authority established by the Bill). No time frames have been given for granting these certificates by the appropriate authority. Also, there’s no provision for a review process, in case the applications for the required certificates are rejected.

On the other hand, these should have been defined in the Bill. Rejections should be subject to challenge, and the reasons should also be divulged.

The appropriate authority will also regulate surrogacy clinics by granting registration certificates. It can also conduct searches at places suspected of violating the provisions or rules and regulations of this Act. The only basis it needs to conduct these searches is ‘reason to believe‘. This can lead to the clinics being unduly harassed. Section 45 makes the Centre or the State, and the appropriate authority immune from legal proceedings for actions taken in ‘good faith’. If that is not the meaning of arbitrariness and vagueness, then I don’t know what is.

The government also established the National Surrogacy Board and the State Surrogacy Board who will advise the Centre/State on policy matters related to surrogacy.  They will also set the minimum standards for clinics. However, the National Surrogacy Board can make regulations on expanding the conditions for an eligibility certificate to the intending couple. Why? Should that not be mentioned in the Bill itself? As it is, the conditions for granting eligibility certificates are already too narrow.

The pregnancy can only be terminated if the surrogate mother consents and the appropriate authority gives its approval. Again, no time frame for the approval is specified. This must be reviewed. The intending couple – the ones who will end up caring and raising the child – also has no say in this. Can the approval be quickly granted in case of a medical emergency? As said before, there has to be a time frame in the Bill regarding approvals.

Too much of the legislation is delegated. To give a clear example, according to Section 47, Sub-section 2, the government can expand the Bill via regulations on nearly 30 different issues. These include the manner in which a person shall store human embryo, number of surrogacy attempts permissible, the manner in which documents will be seized and even the conditions under which the surrogate mother may be allowed to abort.

The Bill desperately needs to be reviewed to avoid extreme dependence on subordinate legislation (regulations and rules) for governance. There needs to be clear definition of the things which, in the hands of an inefficient bureaucrat, can arbitrarily cause harm to the couple, mother or clinics.

Missing Provisions

The basic principle in any criminal jurisprudence is the presumption of innocence – ‘Innocent until proven guilty’. Here, however, this has been reverted – ‘Guilty until proven innocent’.

Under Section 39, if a surrogate mother engages in commercial surrogacy or any other illegal surrogacy procedure, the court will assume that the surrogate mother’s husband, the intending couple or her relative compelled her to do so. How does this go against the established norms of the IPC? The question of the husband’s or the surrogate mother’s consent does not really arise when they engage in surrogacy. Then, how are they automatically presumed to be guilty if they engage in an illegal surrogacy procedure?

There’s no provision for the financial support/insurance of the baby if the intending couple divorces, or one of them dies, during the process of surrogacy. There’s also no provision for the right to privacy for the surrogate mother, even after it has been declared to be a fundamental one.

A hilarious observation made by the Standing Committee was that the services of human embryologists (defined as someone who possesses a post-graduate degree in the field of human embryology recognised under the Indian Medical Council Act 1956) cannot be availed. This is because there exists no university in the country which can grant a degree in human embryology. Unbelievable!

The Bill doesn’t have any provision for the prohibition of sex-selective surrogacy. Nor does the Bill have any provision to resolve disputes between the surrogate mother, the parents and the clinic. On the other hand, the Committee had suggested the constitution of an independent agency, having quasi-judicial powers, to resolve disputes.

Flawed Logic

The basic argument of this Bill in completely banning commercial surrogacy and only allowing altruistic surrogacy is wrong. It has a good intention, but is badly executed. Now, where have we heard that before?

In my opinion, completely banning commercial surrogacy by the government will not work as it will:

1. Remove a stable income source for women who are engaged in commercial surrogacy.

2. Not reward the laborious process of reproduction.

3. Engage in and lead to the paternalistic thinking that almost all women do not know what is right for them.

4. Create a black market for commercial surrogacy, much like the one for human organs.

5. Drive women who want to be surrogates towards crimes such as prostitution or theft.

6. Go against the right to personal liberty as well as the right to make reproductive choices.

Banning of commercial surrogacy is based on preventing the exploitation of women. It’s a good motive – however, a lot of activities can be exploited even if they are heavily regulated. Still, the fear that it can be abused should not deter the government from regulating it. They should also ensure that the women who genuinely help couples while also struggling for a livelihood are compensated fairly. It should also be evaluated if they are using that money for good, perhaps, to start better lives.

Various stakeholders in the report mentioned how a black market would be created if commercial surrogacy was completely banned. It would also take away a legitimate source of income from the women coming from the economically-weaker sections of society. Heavy regulation of commercial surrogacy might be a better option here – and the Standing Committee concurs with my opinion.

In fact, a stakeholder suggested a system in which the State would empanel surrogates the intending couple can choose from. There, the surrogates could be counselled, traced and identified. Mandatory psychological counselling of surrogates was also mentioned. Just like the adoption procedures in developed countries, it would be administered by the state properly. This is perhaps a bit idealistic, but this is definitely geared towards regulation and will be better than the blanket ban this Bill intends to set up.

The Committee also wanted a clarification on the type of surrogacy that’s allowed in the Bill. In Section 2 Clause (zb),  it seems as though only gestational surrogacy is allowed, whereas Section 4 Clause (iii)(b)(III) seemingly makes provisions for both types of surrogacy.

It’s possible that the Health Ministry’s intention was to only permit gestational, and not traditional surrogacy. The Bill, however, has a loophole which allows traditional surrogacy as well, in which a surrogate mother’s eggs can also be used.

Final Thoughts

Despite all this, if the government does not see a need to improve this Bill, especially in light of the scathing report of the Committee, then it will be a huge setback in curbing the exploitation of surrogate mothers or in easing the procedure of surrogacy for genuine couples.

The government should start by examining the basic premise of the Bill, and remove the ban on commercial surrogacy. Instead, it should regulate it (as the title of the Bill mentions) and also compensate surrogate mothers. It must also issue clarifications on time frames and insert unambiguous provisions so that no flimsy interpretation or loophole can be used.

This Bill has the chance to get bi-partisan support across political lines in both the Houses of Parliament. I hope that the government makes it so.

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