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Aftermath of Surrogacy Amendment Bill, 2019

1. INTRODUCTION:

Surrogacy is defined as “arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband, intending to carry it to term and handing over the child to the person or persons for whom she is acting as a surrogate; and a ‘surrogate mother’ is a woman who agrees to have an embryo generated“[1] according to the ART bill.

To put this is in simple words, a women’s womb, which is surrogate mother’s womb is used for pregnancy and she does not have any biological connection with the child. There are also certain issues which develop in certain countries when the surrogate mother gets emotionally attached to the child and does not give the baby back to the biological mother. The process of surrogacy is usually regulated through surrogacy contracts.

The procedure of surrogacy is of two types, mainly:

  • Altruistic surrogacy: There is no monetary compensation involved to the surrogate mother; the mother is usually a willing family member or a friend
  • Commercial surrogacy/Compensated surrogacy: The surrogate mother will be a stranger who agrees for the process for monetary compensation.

There are also other distinctions like traditional surrogacy and gestational surrogacy. The Surrogacy regulation bill, 2019 is introduced in the Loksabha to carry out the process of altruistic surgery. There are various aspects of the bill which forms a disadvantage to the couples and various other members of the society.

2. SURROGACY AMENDMENT BILL 2019:

The surrogacy amendment bill, 2019 is a legislation which is advantageous to certain aspects of society and also affects others. The bill as mentioned above only allows altruistic surrogacy. There is no monetary compensation involved and the act allows close relative who is willing to be the surrogate mother. The bill also comes up with various regulations to the fertility clinic, to avoid middlemen. The surrogacy clinics should be registered to the appropriate authority to monitor their functioning. The bill says that the couples should be “married” and should have an “Indian nationality”. There is also an age limit prescribed to both the surrogate mother and the biological couples. The bill also mentions the legal state of the surrogate child; the child will belong to the biological parent, it will receive all the rights and has to follow all the duties as the own natural child of the intended parents. The bill also states that there will be no sex selection of the child which is a very welcoming decision to prevent female feticide. The bill makes it obligatory to attain a certificate of essentiality and certificate of eligibility for carrying out the surrogacy process. These certificates will guarantee that the child is not neglected by the biological parents in any circumstances. The couples should be legally married for five years and should be Indian to be eligible for the process.

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3. PROS OF THE SURROGACY AMENDMENT BILL, 2019:

The bill bans the commercial surrogacy which prevents exploitation of women. The issue of “renting the womb” and exploiting women for surrogacy and not paying the proper amount mentioned in the contract is a major issue in our country. This mainly happens because of the presence of middlemen who are corrupt and misappropriate the amount.

Our country is very well known for the low cost for carrying out this procedure and the idea of medical tourism has developed a lot due to surrogacy which is leading to more abuse. The extent of this practice in India is not known, but it is discovered that this practice has increased in the last few years and women from petite towns and villages are chosen for outsourcing pregnancy.[2] This will be great protection for women and they are not forced in any practices.

There is also insurance coverage provided for the surrogate that also continues after the birth of the child which helps them and provides security for the surrogate mothers. The certificate of eligibility makes sure the couple can bring up the child without any difficulty and will not abandon the child. The prevention of sex selection will protect the female children as it is a well-known fact that female feticides and infanticide is carried out in many areas in our country. The bill also encourages adoption as the couples who do not come under the provided eligibility can only adopt after this bill comes to force. This is advantageous for children in various adoption homes and child care centre.

4. CONS OF THE SURROGACY AMENDMENT BILL, 2019:

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The bill lacks an answer to a lot of important issues. The bill limits the eligibility only to married Indian couples which affect a lot of members of the society. The bill does not provide any information about the surrogacy contracts that are already there and its enforceability. The bill does not provide any solution to the Non-residents and divorcees. There are many single parents and divorcees who have the right to a family. There are also other cases in which one of the partners will reside abroad and might have a different nationality even though they were born in India and are legally married for five years.

The surrogacy clinics freedom to trade guaranteed by the Indian Constitution under Article 19 is also affected as there are certain clinics which follow all the practices properly and is affected due to the practices of other clinics. The reproductive right is held as a basic fundamental right and it is recognized by the Indian Judiciary in various cases. Thus it is important to balance all the other rights available and at the same time ensure the women are protected.

The bill is also silent about homosexual couples, especially when homosexuality is recently accepted in our country by the landmark Judgment, Navtej Singh Johar v. Union of India[3] in September 2018. They should be able to access the surrogacy procedure as they have equal reproductive rights like other citizens and this bill restricts their only means to procreate a child.

The bill blindly mentions close relative and age limit and there is no proper definition for the term and it will be difficult in the future to include who comes under the category as there are lots of joint families in our country and there are lots of relatives.

5. AFTERMATH AND SUGGESTIONS:

The bill is an important legislation but it would be more effective if the loopholes are filled properly. The bill needs to address more issues and should include more eligibility features like single parents so that it would be more helpful. The complete ban of commercial surrogacy is a disadvantage for various clinics and certain women choose to be surrogate mothers as their occupation and it is their prime source of money and they are not exploited and they provide proper consent. The bill needs to include homosexual couples and also it has to address the issue of non-residents so that they are also benefitted from the bill. The bill can encourage surrogacy contracts and regulate the contracts and can allow certain aspects of commercial surrogacy with proper regulation instead of providing punishment for the surrogate mothers involved in commercial surrogacy.  There should be proper laws on Assisted Reproductive technology to develop the laws of surrogacy as the assisted reproductive technology is the first stage to perform surrogacy.

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6. CONCLUSION

The Surrogacy Amendment Bill, 2019 will be beneficial to the society and individuals only if there are certain amendments in the bill. The bill will not be of any use if it becomes an act at the present stage. The officials have to make certain changes to make it more effective. The bill is essential and it addresses an important issue and it aims to regulate surrogacy but its effectiveness can be guaranteed only after making certain amendments to balance the fundamental rights and the needs of the society. Thus the Surrogacy Amendment Bill 2019, is an important legislation that needs to be reviewed properly again.


[1]  Indian Council of Medical Research (ICMR), The Assisted Reproductive Technologies (Regulation) Bill-2010, Ministry of Health &Family Welfare, Govt. of India, pg. 4 (aa)

[2]  Dr. Ranjana Kumari, Final Report: Surrogate Motherhood- Ethical or Commercial, Centre for Social Research, https://wcd.nic.in/sites/default/files/final%20report.pdf; also at Joseph Gothia, Surrogate mothers: Outsourcing pregnancy in India(June 26, 2008).

[3] Navtej Singh Johar v. Union of India, 2018 (10) SCALE 386.

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Author

Sri Sai Kamalini
Student - SASTRA Deemed to be University