Three months after the Union Cabinet passed the Surrogacy (Regulation) Bill, 2016, legal experts maintain that it will not stand the test of constitutional rights. In a panel discussion held on Friday, former Attorney-General of India Soli Sorabjee said that the Bill imposes restrictions in “violation of basic rights of privacy and fundamental rights of reproductive autonomy.”
While the Bill is yet to be tabled in Parliament, the Indian government — for the next 10 months — has allowed continuing pregnancies commissioned by existing surrogacy agreements. Since the version of the Bill approved by the Cabinet is not in the public domain, there are serious concerns about the five restrictions to be imposed on prospective parents and commercial surrogate mothers.
Cause for controversy
The new Bill proposes a ban on commercial surrogacy, restricting ethical and altruistic surrogacy to legally wedded infertile Indian couples married for at least five years. Further, the husband must be between 26 and 55 years of age and the wife must be between 23 and 50 years of age. The most controversial part, say experts, is that overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples are barred from commissioning surrogacy. Only a close married blood relative, who must have herself borne a child and is not an NRI or a foreigner, can be a surrogate mother. Indian couples with biological or adopted children have also been barred. Commercial surrogacy will entail a jail term of at least 10 years and a fine of up to Rs. 10 lakh.
“The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the State. It is for the person and not the State to decide,” said lawyer Anil Malhotra.
While concerns have been expressed about the exploitation of surrogate mothers, IVF expert Dr Shivani Sachdev Gour said the industry can be regulated. “If the government maintains that majority of the women are exploited, mechanisms can be put in place to address this as most parents wanting a family by way of surrogacy will not have any options once this law comes into force,” she said.
