Given how a legally and ethically fraught matter such as surrogacy has been left unregulated so far, it would seem that the government has done well to bring the Surrogacy (Regulation) Bill, 2016.
But it isn’t so. To be sure, legal opinion on surrogacy created a regulatory greyzone—the Supreme Court held commercial surrogacy legal in 2002 while a Law Commission report called for banning it—that helped it go from being a rarely-used assisted reproductive technology (ART) to an womb-rental industry.
In a ‘baby-farms’ scenario, women from impoverished families put their health at a risk, carrying foetuses to term more frequently than what is medically advisable while fertility/ART clinics made money off the vulnerability of both the surrogates and the commissioning parents. Certain cases also posed puzzling legal dilemmas—whose legal ward was the baby if the commissioning parents abandoned it, what if there were multiple births but the commissioning parents wanted only one child, etc.
The government, meanwhile, had promulgated the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in 2005—amended in 2008, 2010 and 2013—but this wasn’t legally binding.
However, the new Bill throws the baby out with the bathwater. It proposes a complete ban on commercial surrogacy.
The state, which should safeguard the surrogate’s agency and help her benefit from it equitably, is banning her from applying it altogether. Allowing only altruistic surgery also limits the options available to nearly 20 million married, heterosexual Indian couples—after all, not all of these couples may be able to find a volunteer. A ban only means that commercial commissions will be falsely reported as altruistic.
Instead, provisions like a cap on the number of times a woman can be a surrogate mother, a minimum spacing between successive commissions she accepts, etc., would have served the purpose better.
Given anonymity and distance (from the child) of the surrogate are conducive to avoiding parenthood claims, it is also odd that the Bill limits the choice of the surrogate to close relatives. Also puzzling is the proposal that records of each surrogacy should be maintained for 25 years.
While it may help a child get to know her surrogate mother if she wishes so as an adult, it sure does set the stage for potential legal disputes.
The proposal to ban foreigners, LGBTQI individuals, live-in couples, and single persons from commissioning a surrogacy—pleading that the ‘country’s values have to be kept in mind’—institutionalises discrimination.
The Bill, however, gets it right in banning abandonment of the child by the commissioning parents and prescribing strict punitive measures for this. Also, the proposal that all fertility/ART clinics must be registered with the government means that some sort of monitoring would also be possible.
But, largely, the Bill seems more a hurdle for surrogacy in India, commercial or otherwise, than a law to regulate it.