Authors: Rohin Bhatt, Kelly Dhru
Introduction
After 2000, India had become a global leader in providing ‘wombs for rent’ with the small town of Anand in the State of Gujaratt being called the surrogacy capital of the world. A major cause was that India remains a cheaper option for assisted reproductive technologies. It is estimated that in 2012, 25,000 children were born in India and nearly half of them were born to international couples. In Post the boom in surrogacy, there was a dire need for regulation of surrogacy. The first guidelines were issued by the Indian Council of Medical Research in 2005 which mandated a compulsory monetary compensation that had to be given to the surrogate mother by the intended parents. They also specified that the surrogate mother could not donate an egg to a child which she was supposed to bear. The Law Commission, in 2009 brought forth its 228th report showing how foreign couples came to India for surrogacy leading to the possible exploitation of poorer women and recommended a complete prohibition on commercial surrogacy. It also felt that the Bill proposed by ICMR was ‘full of lacunae, nay, it (was) incomplete’. But it also acknowledged that the bill was in the right direction. The Ministry of Health and Family Welfare, on 4th November 2015, issued a notification which banned commercial surrogacy. Based on this, the Surrogacy (Regulation) Bill, 2016 was tabled in the Parliament in 2016. But the bill lapsed and it was re-tabled in 2019 as the Surrogacy (Regulation) Bill, 2019.
Salient Features of the Bill
The intention of the bill, according to its long title is ‘to constitute National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.’ It seeks to place a blanket ban on commercial surrogacy and only allow for altruistic surrogacy, as defined under Section - 2 (b) of the bill, and only allows surrogacy for Indian Couples.
The Bill puts serious limitations on the couples who can commission surrogacy. In case a couple decides to do it, it should be altruistic, i.e. there should be only medical expenses and the insurance coverage of the surrogate mother, or her dependents or her relatives that can be paid, The payment of any other charges, expenses, fees, remuneration or monetary incentives is prohibited.
The couple eligible to commission surrogacy should be proven to be infertile. They also require certificates of essentiality and eligibility to be issued by the appropriate authority. A certificate of eligibility, according to Section - 4 can be issued when the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification. It also provides that the couple should be married for 5 years and the couple should not have any biological or adopted child or a child conceived through surrogacy earlier that is living. But, there is also an exception carved out. In case the child suffers from a life-threatening disorder or a fatal illness with no cure, then a child may be conceived through surrogacy. The certificate of essentiality will only be issued when there is a certificate of proven fertility for one or both of the intending parents from a district medical board. This is to be complemented with an order of parentage and custody of the surrogate child passed by a Magistrate’s court and coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
The surrogate also has to obtain a certificate of eligibility for which she must be a close relative* of the intending couple. She must be a married woman with a child of her own and must be between 25-35 years old. There is also a prohibition on becoming a surrogate more than once.
The Bill provides for a mandatory registration of surrogacy, failing which, they may not undertake surrogacy related procedures. These clinics must apply within 60 days for registration from the date of appointment of appropriate authority. It also provides for the creation of Central and State Surrogacy Boards. These boards will be responsible for advising the Central government on policy matters relating to surrogacy, laying down the code of conduct of surrogacy clinics, and supervising the functioning of State Surrogacy Boards.
The Bill has specific provisions regarding abortion and parentage of any child born through surrogacy, which was previously relegated to the domain of contractual arrangements. The Bill clearly states that any child born out of a surrogacy procedure will be the child of the intending couple. However, any termination shall require the explicit written consent of the surrogate mother and the authorisation of the appropriate authority. The abortion should comply with the Medical Termination of Pregnancy Act, 1971. It also recognises the right of the surrogate mother to withdraw before the implantation of the embryo in the uterus.
The Bill, in Chapter VII, creates multiple offences including advertising commercial surrogacy, exploiting the surrogate, abandoning a child etc. Each of these offences is punishable with imprisonment up to 10 years and a fine up to 10 lakh rupees.
Problems with the Bill
The Bill is laden with deficits and is strife with the lack of understanding on the part of the draftsmen and the Ministry. This part of the analysis will try to address some of the flaws in the Bill- from the medical, social, and legal dimensions.
Flaws with the Medical Parts
This Bill places the cart before the horse. There should have been the tabling and passing of the ART Bill and then the Surrogacy Bill, so that different avenues may also open up for the creation of alternate families on which the bill is currently silent. The Bill mandates that the couple has to wait for 5 years before they can avail of surrogacy. Gametes cannot be frozen as there are no guidelines in place. In a scenario where all procedures are done and on the last day the surrogate mother cannot undergo surrogacy for some reason, the law as it stands today does not allow for the preservation and storage of these gametes. This differs from the 2005 ICMR guidelines which allowed preservation for 5 years. This prohibition of preservation can be harmful to the intending mother in case she may not have any more viable eggs or if she is menopausal.
The World Health Organisation says that if a couple cannot achieve pregnancy after 12 months of regular unprotected intercourse, they are infertile. The Bill defines infertility as the ability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception. The five-year limitation on the couple before they can avail of surrogacy makes little or perhaps no scientific sense.
Social and Ethical Flaws
The Bill seeks to recreate the notion of a cis-gendered, heteronormative family with children, and also brings in national restrictions in a globalising world. The underlying values and assumptions of the Bill borderline between paternalistic protection of the seemingly vulnerable and helpless population, while also bringing in restrictive and conservative measures from the backdoor. The Bill is framed in a certain way: only the traditional understanding of the social institutions of marriage and family are legalised through it.
Only a couple married for five years with no existing children, or a child with a fatal disorder is allowed to avail a surrogacy procedure. In doing so, the Bill leaves out the LGBTQ+ population and single parents. Justice Chandrachud in Navtej Singh Johar v. Union of India said ‘Gays and Lesbians, Transgenders and Bisexuals continue to be denied truly equal citizenship seven decades after independence’. This Bill continues to deny those rights of equal citizenship. Justice Chandrachud further went on to say ‘It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals, and transgenders have a constitutional right to equal citizenship in all its manifestations’. Denying the right to become parents and to have children to the LGBTQ+ population is a travesty upon the Constitution.
The Bill has also left out single parents and live-in couples. While there is no explicit provision of law determining the rights and obligations of the people involved in a live-in relationship or the status of the children born through the live-in relationship, the courts have also stayed away from explicitly commenting on their legality. However, through a series of decisions, the approach has always been to treat a reasonably long live-in relationship as a marriage.
After 2000, India had become a global leader in providing ‘wombs for rent’ with the small town of Anand in the State of Gujarat being called the surrogacy capital of the world. At the same time, the fact that one is not able to consent to the use of one’s body already brings yet another example that shapes the jurisprudence around the ownership of the body. However, it is not as if the use of one’s body for bearing the child of another is totally banned: guidelines were issued by the Indian Council of Medical Research in 2005 which mandated a compulsory monetary compensation that had to be given to the surrogate mother by the intended parents. They also specified that the surrogate mother could not donate an egg to a child which she was supposed to bear. The Law Commission, in 2009 brought forth its medically downtrodden and deprived sections.
In doing so, there is a paternalistic presumption of exploitation of these surrogates and this possibly does more harm than good by taking away the agency of these surrogates. The burden of proof then is on the parties to prove that they did not commit the ‘crime’ of commercial surrogacy. The intending parents have no say in the abortion of the child conceived through surrogacy.
Legal Aspects
Societies and social institutions are in a state of constant flux. They evolve with every passing day and the law should, nay must, keep up with these changes. The nature of the Bill is discriminatory to certain sections of the society and in violation of Articles 14 and 21 of the Constitution of India, and hence, unconstitutional.
The Bill says that a close relative may be the surrogate, however, there is no definition of a close surrogate, either in the bill or any other legislation. This indicates a greater need for consistency in the legislations and their drafting.
The Bill is silent on crucial aspects of information and privacy and on issues such as the right to know one’s parents. These cases may seem hypothetical and far fetched at first glance, but these issues have been litigated and adjudicated in other jurisdictions.
The bill talks about certificates to be issued, but there is no right to review or appeal to the intending parents. This is arbitrary and discriminatory and violative of principles of natural justice and by extension a violation of Article 14.
Additionally, there are powers to make rules to determine any other eligibility criteria or any other condition or disease for which surrogacy may be allowed. This is a case of excess delegation of powers. These conditions ought to be specified in the parent act.
Conclusion
In the letter by the chairman of the Law Commission which drafted the 228th Report to the Law Minister, the chairman wrote ‘Non-intervention of law in this knotty issue will not be proper at a time when the law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.’ This is what the Bill has done. It has chosen to legislate on the subject without a proper assessment of social ends and purposes.
There can be no denial that bringing forth the law was essential. But to do it without any understanding of the medical, social and economic milieu can and may do more harm than good. The Bill needs medical intervention to guide the drafters about the nuances of the law and medicine. Unfair penalty, discrimination and criminalising surrogacy will undoubtedly drive these clinics underground and that will be disastrous: for the intending couples, for the surrogates and the society as a whole.
* The Standing Committee which deliberated the bill has suggested that the surrogate should not necessarily be the close relative of the intending couple.
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