In the wake of celebrities resorting to surrogacy to have children, the debate over surrogacy has resurfaced to expose the loopholes and limitations in the Assisted Reproductive Technology Bill (ART Bill). Some of the pertinent issues remain unaddressed in the Bill, thereby raising questions on its large scale practice.
There is no stipulation on the number of times an intending couple or individual can make use of surrogacy.
Further there is no maximum age limit prescribed under the Bill for the couples or individual in order to be eligible to make use of ART though the minimum age limit is prescribed as 21 years.
There is no screening of the socio-economic/family background of the couples. Neither are there any eligibility criteria for an individual to be a fit parent to have child via surrogacy. There is no appointed government body to monitor the issue.
The ART Bill prohibits sex-selective surrogacy in consonance with the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act. But during the pendency of the Bill there is no means to check if the clinics are complying with the same; further there is no effective body to oversee the conduct and operation of clinics.
It is well known that surrogacy in commercial form is legal in India with the landmark Supreme Court judgment and later, the Indian Council of Medical Research (ICMR) Guidelines 2005 which prescribed conduct and use of ART procedures or treatment by fertility clinics. Subsequent to this the ART (Regulation) Bill 2010 was formulated by the Union Ministry of Health & Family Welfare, which is still awaiting enforcement. The ART Bill legalised commercial surrogacy by providing for payment as “monetary compensation” to the surrogate mother by the intending couple.
In addition to these, there is Law Commission Report No. 228 of the year 2009 which recommended legalising altruistic or non-commercial surrogacy arrangements in India in order to protect the surrogate mother from exploitation, as opposed to the ART Bill.
Lately, Home Ministry guidelines which are applicable only to foreign couples restricts the choice of surrogacy to heterosexual couples whereas the ART Bill permits surrogacy by all including single or unmarried; there is no bar on sexual orientation and on nationality.
Despite a series of legal instruments seeking to regulate surrogacy, it is evident that the legal position in India on the issue, besides being inadequate, is also inconsistent and ambiguous. It therefore needs clarity.
(The author is a Ph.D. research scholar at the National Law School of India University, Bangalore. The views expressed are personal)
