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Why I Think The Surrogacy Bill Is Both Unreasonable And Unjust

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The Surrogacy (Regulation) Bill 2016 was first introduced in the Lok Sabha on November 21, 2016. It was referred to the parliamentary Standing Committee on Health and Family Welfare on January 12, 2017. Finally, it was passed by the Lok Sabha on December 19, 2018.

The aim of this Bill was to ban commercial surrogacy, allowing only altruistic surrogacy. This means that other than the medical and insurance expenses, the surrogate will not be compensated in any way. The Bill has specified that the surrogate mother must be a close relative of the intending couple and should be between the age of 25 and 35, though it hasn’t defined the term “close relative”. Also, a person can be a surrogate only once, only to an Indian couple in a heterosexual marriage who have been married for at least five years.

The Bill was apparently also passed to prevent the exploitation of poor women who take up surrogacy as a way to earn their livelihood. Except the Bill hasn’t done a single thing to prevent the exploitation of women, it has just cut off their means to make money.

If the Standing Committee had to prevent exploitation, they should have made the entire term of surrogacy safe and secure for the surrogate mother, created comfortable work conditions, and looked into improving the contract between the surrogate and the couple. But giving the women no compensation for being a surrogate is extremely unfair. The surrogate mother goes through a lot of physical and emotional pain and turmoil during the pregnancy period and should at least be paid for it.

The Bill also specifies that the intending couple should not be able to conceive a child, so at least one of them must be infertile. It doesn’t talk about any other medical conditions which may prevent the birth of a child. It is an unfair assumption that only a couple that is infertile deserves to have a surrogate child. There may be so many other conditions in which the couple is unable to conceive, yet desire to have a child of their own. The Bill further states that the couple should be between the age of 23-50 years and 26-55 years for female and male respectively.

This Act doesn’t extend to single people or persons in same-sex relationships, which contradicts their claim of the Bill being ‘modern’. Why shouldn’t they be allowed to opt for surrogacy? The rights of live-in couples have been recognised several times in previous judgements, automatically giving them almost the same rights as a married couple. And yet, opting for surrogacy isn’t one of them.

People in same-sex relationships, older couples, and even single parents will not be allowed to opt for surrogacy. Image Source: Scott Air Force Base.

According to the Surrogacy Bill, a ‘certificate of essentiality’ and a ‘certificate of eligibility’ must be issued by the appropriate authority to the intending couple for them to be proceed with surrogacy. A ‘certificate of eligibility’ also needs to be issued for the surrogate mother in order to pursue the surrogacy. The certificate of essentiality will be issued to the intending couple upon fulfillment of the following conditions: (i) a certificate of proven infertility of either or both of them; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance coverage for the surrogate mother. The certificate of eligibility to the intending couple is issued upon the fulfillment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) they do not have any surviving children (biological, adopted or surrogate), except if the child is mentally or physically challenged or suffers from a life threatening disorder; and (iv) such other conditions that may be specified through regulations. To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to: (i) be a close relative of the intending couple; (ii) be an ever-married woman having a child of her own; (iii) be 25 to 35 years old; (iv) not have been a surrogate mother earlier; and (iv) have a certificate of medical and psychological fitness.

As we go further, the Bill has placed additional regulations on heterosexual married couples. The couple needs “a certificate of proven infertility in favor of either or both members of the intending couple from a District Medical Board” to be eligible for the surrogacy. This is a gross violation of their right to privacy, and, as I mentioned earlier, it is completely unjust that only an infertile couple can opt for a surrogacy.

Throughout the Bill, there are so many unreasonable and uncalled for requirements like the age barrier and the five-year time bar. The five-year waiting period after a couple gets married is a violation of their right to reproduction and their right to privacy. Several couples choose to get married late in life. For them this delay reduces their chances of having a child through surrogacy.

There is no doubt that the surrogacy industry needs to be regulated and monitored but this Bill is extreme and arbitrary. Banning commercial surrogacy will give way to underground surrogacy. Many impoverished women had the chance of making their living conditions better by being surrogates, and that is now gone.

This Bill is a contradiction of the Supreme Court’s judgement giving people the Right to Privacy and the right to make their own choices, including in matter of family life and procreation. The State is forcing us back into earlier notions of freedom which, according to me, were extremely orthodox and regressive.

Featured Image source: Scott Air Force Base.

Tell us your thoughts and observations on this Bill. Your article will contribute to the way your elected representatives are presenting bills, defining policies and creating change in the Parliament. Response article will be shared with respective Member of Parliament, and in many cases - suggestions are included in the drafting of future policies.

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  1. Maissa Delon

    No one dares to condemn celebrities when they resort to this decidedly controversial practice. But ordinary people are not given the chance to become parents. Everyone is immediately against it. What is this double standard? Regarding surrogacy, I found a Ukrainian law translated into English. I advise anyone interested to read it. https://www.mother-surrogate.com/pdf/surrogate_motherhood_law.pdf

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