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 on the subject, held on Friday, Soli Sorabjee, former attorney general of India said that the bill imposes restrictions that are in “violation of basic rights of privacy and fundamental rights of reproductive autonomy.”
While the bill is yet to be tabled in the Parliament, the Indian government — for the next 10 months — has allowed continuing pregnancies commissioned by existing surrogacy agreements so that the commissioned babies are carried to term. The final version of the bill approved by the Cabinet is not in public domain, and there are serious concerns about the five restrictions imposed on the prospective parents and commercial surrogate mothers by the new law.
The new Bill proposes a complete ban on commercial surrogacy, restricting ethical and altruistic surrogacy to legally wedded infertile Indian couples, married for at least 5 years only. Further, the husband must be between 26 to 55 years of age and the wife must be between 23 to 50 years of age.
The most controversial part, according to industry 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 once in a lifetime. Indian couples with biological or adopted children are prohibited to undertake surrogacy. Under the surrogacy contract, the commissioning parents will be allowed to only pay the medical expenses and not compensate the surrogate mother is any other way. Commercial surrogacy, amongst other offences, will entail a jail term of at least ten years and a fine of up to Rs. 10 lakhs.
“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, and does not warrant interference of a fundamental right. It is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally and legally cannot interfere or impose itself. Moreover, infertility cannot be made compulsory to undertake surrogacy. The proposed law ought to be put in public domain for view points of stake holders before the Parliamentarians debate on it. Democratically, all perspectives must be considered before opinions voiced, conclusions drawn and decisions are taken or announced. The view of the Government cannot be super imposed over the will of the people,” said lawyer Anil Malhotra.
While concerns have been expressed about the exploitation of commercial surrogate mothers & their reproductive health, Dr Shivani Sachdev Gour, a Delhi based IVF expert said that the industry can be regulated. “When the adoption industry can be regulated why not the surrogacy industry? If the government maintains that majority of the women are exploited, mechanisms can be put in place to address that because majority of the parents wanting a family by way of surrogacy will no longer have any options when this law comes into force,” Dr. Gour said.
