Surrogacy is defined as a procedure in which a woman bears a child for an intending couple to deliver the child over to them after birth.
What Does The Surrogacy Bill (2019) Entail?
The Surrogacy (Regulation) Bill, 2019, was introduced in the Lok Sabha by the Minister of Health and Family Welfare on 15th July 2019. The Lok Sabha approved it on 5th August 2019.
It was amended and again sent for consideration in 2020 with necessary amendments. It was passed again in the Rajya Sabha on 8th December 2021.
Critical Analysis Of The Surrogacy Bill
Accordingly, upon analysis, the following can be identified as the primary goals of this bill:
- In the Surrogacy Bill, surrogacy is defined as a procedure in which a woman bears a child for an intending couple to deliver the child over to them after birth.
- Only altruistic surgery (in which the surrogate mother receives no monetary reward other than medical expenditures and insurance coverage during the pregnancy) is legal. Commercial surgery is prohibited as it includes a monetary compensation or advantage (in cash or kind) in addition to basic medical costs and insurance coverage.
- Criteria for surrogacy procedure availability. (For example, infertility, no commercial use, not used for prostitution etc.)
- This bill also states that the surrogate mother must give written permission before the surrogacy operation. The surrogate mother can withdraw her consent at any moment before the embryo is implanted.
- The upper age limit of 55 years is capped to avoid health and ethical issues.
- Clinics regarding surrogacy are forbidden to show advertisements regarding sex selection.
- Stricter guidelines prohibit parents from disowning children based on events like genetic disorders etc.
- One needs to obtain certificates from health experts for a certificate of essentiality and a certificate of eligibility for surrogacy.
- The surrogate must be closely related to the couple. (No mention of an individual)
- The Bill includes provisions for live-in couples, divorced women, widows, non-resident Indians (NRIs), persons of Indian origin (PIOs), and overseas citizenship of India (OCI). But, it has restricted them to a specific age. There is no mention of the LGBTQIA+ community and single fathers.
Is The Surrogacy Bill Against The LGBTQIA+ Community And Single Fathers?
It is a welcome step to include provisions for live-in couples, divorced women and widows, but the LGBTQIA+ community and single fathers have been consciously left out. Also, the requirements for live-in couples, divorced women and widows have not been liberal, like restricting it to an age lesser than other people who wish to conceive.
Surrogacy, defined in this bill, is exclusively available to cis-heterosexual couples, which is problematic because it bans single people and the LGBTQIA+ population from participating.
It refuses to recognise homosexual couples as ‘legitimate’ and denies them the ability to commission a child.
With the ART Bill passed in the Lok Sabha, we are a step closer to LGBTQ+ couples and single parents not being able to access ARTs. It will be passed by RS. The surrogacy bill will be the final nail in the coffin of reproductive freedom in India. They are illegal. Oppose them.
— Rohin ?️? (@BhattRohin) December 2, 2021
The Supreme Court has ruled that the right to life inherent in Article 21 of the Constitution also encompasses the ‘right to livelihood.’
When one closely reviews the bill, we can find that the entire basis of this bill is conceived on the notion of marriage and such classification goes against Article 21 of the constitution.
As a result, denying surrogacy rights to LGBTQIA+ people, single people, and elderly couples and restricting it to heterosexual couples, widows, and divorced women of a specific age breaches Article 21’s fundamental right to life.
Reactions By Eminent Professors
According to Dr Anant Bhan’s research, around 20% of surrogacy cases include single men and women. He believes that this backwards move should be reconsidered and rectified to ensure equal rights.
According to Prof Satendra Singh of Delhi’s University College of Medical Sciences, the law goes against the spirit of the Supreme Court’s landmark Navtej Johar v Union of India decision, which decriminalised all forms of consensual sex among adults, including homosexual sex.
Some Other Important Points
The Bill will aid with the regulation and oversight of ART clinics (where the procedure is performed) and banks across the country and the prevention of unethical acts.
As mentioned earlier, commercial surrogacy is outright prohibited by the bill, and only altruistic surrogacy is permitted. However, it appears that this step is not entirely beneficial.
In many cases, commercial surrogacy is an appealing option for the parties involved. This is because it gives the poor surrogate mother financial security and incorporates foreign currency investment.
Also, the definition of a close relative is not given in the law. So in a way, as mentioned earlier, surrogacy can become impossible for LGBTQIA+ and single people.
Note: The author is part of the Dec ’21 batch of the Writer’s Training Program.