The proposed law is silent on the right to parenthood of LGBTQs and doesn’t specify monetary compensation to the surrogate mother
Surrogacy in India has come a long way, from the country becoming a popular destination for childless couples since 2002 to the surrogacy (Regulation) Bill, 2016, which restricted the option of surrogacy for many. The law regulating surrogacy was first mooted in 2016 in the wake of disturbing reports of exploitation of women, who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance for repeatedly becoming surrogate mothers to supplement family income. In 2018-19, too, several cases of harassment and violence against surrogate mothers were reported to the police and brought before courts in the country. These incidents led to an increase in demands for a law regulating surrogacy, protecting rights of both parents and surrogate mothers.
As a result, on February 26, the Union Cabinet approved recommendations made by the 23-member Rajya Sabha Select Committee on Surrogacy (Regulation) Bill, 2020. This allows a “willing woman” and not just a “close relative” to become a surrogate mother and proposes that single women can also benefit from its provisions, besides infertile Indian couples.
Today, there are two types of surrogacy. The first type of surrogacy arrangement is “traditional surrogacy” or “complete surrogacy” in which the eggs of the surrogate mother are used in the conception of the child. The surrogate mother is genetically related to the child and is thus more accurately considered the child’s biological mother. In this process the surrogate mother conceives the baby by means of “artificial insemination.” It is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb. The second type of surrogacy arrangement is “gestational surrogacy”, in which the wife is fertile but incapable of carrying a growing foetus; the child is conceived by “in-vitro fertilisation” using the wife’s eggs and her husband’s sperm, and the resulting embryo is implanted in the surrogate mother’s uterus.
There is another kind of surrogacy called “altruistic surrogacy”. It is a situation where the surrogate receives no financial reward for the pregnancy or the relinquishment of the child. Another term “commercial surrogacy” is much in debate where a woman agrees to bear the child for a fee over and and above the medical expenses.
The earlier version of the Bill defined commercial surrogacy as a surrogacy or its related procedures undertaken for a monetary benefit. In India, the demand for surrogacy has been on the rise due to decisions to have a baby later in life, problems with the uterus, pelvic tuberculosis, infections and so on. India is one of the few countries that allowed commercial surrogacy for a long period of time apart from Russia, Ukraine and some states in the US.
With the new law, commercial surrogacy will be prohibited, including sale and purchase of human embryo and gametes and ethical surrogacy to lndian married couples, Indian-origin married couples and Indian single woman (widows or divorcees between the age of 35 and 45 years) will be allowed on fulfillment of certain conditions. The proposed law says that only Indian couples can opt for surrogacy in the country. It also allows the person using a surrogate mother to pay just for her medical expenses to reduce commercialisation. The proposed insurance cover for surrogate mothers has now been increased to 36 months from 16 months provided in the earlier draft. The text further proposes to regulate surrogacy by establishing a National Surrogacy Board at the central level and State Surrogacy Board and appropriate authorities in States and Union Territories respectively.
The proposed law allows a “willing woman” and not just a “close relative” to become a surrogate mother for the simple reason that with families getting smaller these days, it is becoming difficult to find somebody among close relatives for the task. So altruistic surrogacy has been allowed, where there is no element of coercion and is done in the spirit of helping somebody. This would ensure that all those who are needy can take advantage of science.
However, the definition of “infertility” as the inability to conceive after five years of unprotected intercourse should be deleted on the ground that it is too long a period for a couple to wait for a child. Further, the proposed legislation is silent on the right to parenthood of LGBTQ couples. Health experts, however, criticised the absence of monetary compensation for the surrogate. They say that while it is a good step to omit near relative clause for a surrogate, it doesn’t help to not include monetary compensation for the surrogate because not many women would be interested in carrying someone’s child without being paid for it. They also seek establishment of surrogate clinics for mothers at the district level with a full time woman medical practitioner. Surrogacy is a boon for women who are looking to make ends meet. Although, surrounded by a few criticisms, this is a welcome move by the Government where a liberal view or approach on the issues of reproductive rights of women, was much needed.
(The writer is Assistant Professor, KIIT University, Bhubaneswar)