The Surrogacy Regulation Bill, 2016, cleared by the Cabinet last week, proposes a radical change from imposing a blanket ban on commercial surrogacy to allowing only couples who have been married for 5 years or more to seek such services, and that too from a close relative only. In this, the married blood relative who has herself borne a child can be a surrogate mother once in a lifetime.
The Bill proposes to regulate surrogacy in India by restricting “ethical” and “altruistic surrogacy” to legally-wedded infertile Indian couples between the ages of 23-50 years (women) and 26-55 (men). Couples with biological or adopted children are not eligible for having kids through surrogacy. Even overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples cannot opt for surrogacy as per the proposed legislation.
Commercial surrogacy will result in a jail term of at least 10 years and a fine of up to R10 lakh. It suggests punitive action in case of abandonment of the child and in case of other malpractices. Registered surrogacy clinics will have to maintain all the records for a minimum period of 25 years.
Surrogacy has been a thriving part of the Indian medical tourism industry, with many couples from other countries coming here because of relatively lower costs, less restrictive laws and availability of surrogate mothers. According to a 2012 analysis, 2,000 women of foreign origin had children through surrogates in India. Before the government imposed a ban in November 2015, foreigners accounted for 80% of surrogacy births in India. Though no scientific studies are available, the market for surrogacy is pegged at R25,000 crore.
Barring a few countries like Russia, Ukraine and some US states, commercial surrogacy is already banned in most countries, including Australia, the UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand, among others.
The need for the regulatory law was felt when certain instances of abandonment of children born through surrogacy came to light. The regulation in this regard was also recommended in the 228th report of the Law Commission of India. The panel asked the government to prohibit commercial surrogacy and allow only ethical altruistic surrogacy to needy Indian citizens. Incidences of exploitation of surrogate mothers resulted in a number of PILs in the Supreme Court. A PIL filed by advocate Jayashree Wad alleged that India has virtually become a “baby factory” and trading of human embryos has become a business which needs to be regulated.
Though the proposed law has come at a right time, it has generated mixed reactions from various stakeholders. Few have termed the Bill as “inherently illegal,” others that the ban has the potential to encourage an underground black market. Some have accused the government of narrow-mindedness and questioned its rationale to deny joy of parenthood to a childless and also deprive poor women who rent their wombs to earn livelihood.
Provision to ban commercial surrogacy and allow a couple to opt for altruistic surrogacy from a close relative has come under severe criticism from almost all quarters. Terming it as the government’s narrow vision, they say finding a close relative who will volunteer as a surrogate mother is a major hurdle.
“What happens to those childless couples who don’t have a ‘close’ relative who is married and has kids of her own, and is also willing to bear a child for somebody else?” asks Hari Ram Ramasubramanian, a consultant with the Surrogacy Law Center.
“No doubt, surrogacy has to be regulated, but not abrogated. The Bill, as of now, totally kills the aspirations of a childless. And in this age of nuclear families, it is impossible to get a relative who will offer her womb. Child born through a relative will be divided between the two mothers. Even restricting it to only married couples is not a good idea. We have taken several steps backwards,” says SC lawyer Aprajita Singh.
Then there are family dynamics. “How many grandmothers or mothers-in-law would give their nod to surrogacy within the family? Some, maybe. But let’s be honest, the majority won’t. Which is why most women who opt for surrogacy choose to do so discreetly. Away from the prying eyes of their extended families,” says Rupali Tewari, a journalist, who herself opted for surrogacy when she had exhausted all other methods. The baby girl brought so much joy and gave her “a general sense of achievement,” she says in her blog. “For someone who greatly benefited from this scientific advancement, I find the Surrogacy Bill—that bans all kinds of commercial surrogacy—regressive and an attack on our democratic freedom,” she says.
While some argue that there are different ways of making a family like adopting an orphan child, this is also not easy due to legal hurdles and long waiting. But then to have a biological child of their own is what the childless desire. “It is a personal decision and each couple should be allowed to take this decision. If scientific options such as surrogacy exist, why not make it useful to those that can benefit from it?” says Tewari.
With this blanket ban, the Bill betrays a discriminatory attitude towards single parents, divorcees, widowed, single sex couples, live-in relationship partners and others.
Legal experts say that the state cannot interfere in the prerogative of a person to have children. “The right to life includes the right to reproductive autonomy—that includes the right to procreation and parenthood. It is not for the state to decide how a child should be born. And then the government should remember that surrogacy is not the choice, but a last option for aspiring parents,” says advocate Vinita Bhargava.
Even surrogate mothers from Gujarat are planning to lodge a protest with the Prime Minister. They feel surrogacy, an act of kindness, is a personal decision and can’t be banned. Bearing a child for childless couples was a “decent” way out of poverty and instead of banning surrogacy, the government must ensure higher compensation, they add.
The government has justified the barring of foreigners to prevent the misuse of surrogacy. But experts term this as a retrograde step which has cut off an important revenue source since last year for clinics and surrogates. They say allowing altruistic surrogacy only will increase corruption, exploitation of surrogate mothers and would push surrogacy into unethical hands. Infertility specialists also rue this as unjust and insensitive, saying the Bill “virtually spelt death to surrogacy.”
This Bill, in the current form, is not an answer. The government, before placing the Bill in Parliament, needs to reconsider it and enact a comprehensive law, factoring in the current societal practices and modern lifestyles.