The lowdown on the Bill to regulate surrogacy

The Surrogacy (Regulation) Bill was introduced in Parliament in November 2016. With Karan Johar announcing recently that he has had twins through a surrogate mother, the spotlight is back on the Surrogacy Bill that is yet to become an Act, allowing for it to be implemented in the country.

The Bill seeks to regulate the surrogacy part of a rather flourishing infertility industry in the country.

Defining ‘surrogacy’ as a practice in which a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth, the Bill allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other monetary consideration will be allowed.

India has emerged a hub for infertility treatment, attracting people from the world over with its state-of-the-art technology and competitive prices initially to treat infertility. Soon after, with the prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses — often to facilitate a marriage, enable children to get education, or provide for hospitalisation or surgery for someone in the family.

Once information of the availability of such wombs got out, the demand also picked up. Unscrupulous middle men inveigled themselves into the scene, and the exploitation of women began. Several instances began to emerge after women, in desperate straits, began to file police complaints when they did not receive the promised sum.

Other issues also began to crop up. For instance, in 2008, a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split and there were no takers for the child.

In 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that was born. The time was ripe for regulation, or a revolt.

Any couple that has ‘proven infertility’ are candidates. The ‘intending couple,’ as the Bill calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. The former will be issued if the couple fulfils three conditions: one, a certificate of infertility of one or both from a district medical board; two, an order of parentage and custody of the surrogate child passed by a magistrate’s court; thirdly, insurance cover for the surrogate mother.

An eligibility certificate mandates that the couple fulfil the following conditions: they should be Indian citizens who have been married for at least five years; the female must be between 23 and 50 years and the male 26 and 55 years; and they cannot have any surviving child (biological, adopted or surrogate). However, this would not include a ‘child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.’

Only a close relative of the couple, who is able to provide a medical fitness certificate, can be a surrogate mother. She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once.

While there was a general murmur of appreciation and some strident approval from infertility experts, there was some apprehension about the regulations being too restrictive. For instance, it does not allow single women or men, as in the case of Johar, or gay couples to go in for surrogacy. Representations from these groups emerged even as Health Minister J.P. Nadda introduced the Bill in the House.

Others, primarily those involved in organ transplantation, pointed out how despite a similar stringent law, the Transplantation of Human Organs Act, organ commerce continues to thrive. Clearly, the issue will have to be handled firmly, even as the sensitivities of people are factored in.

The Bill will have to be passed by both Houses of Parliament to become an Act. The States would have to draw up their rules and regulations for the implementation.

Ramya Kannan

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