The Cabinet nod to Surrogacy Bill, 2020 - By: Mehak Bhatia

“Little souls find their way to you, whether they’re from your womb or someone else’s.” - Sheryl Crow

Surrogacy has been a well- known debatable topic in India since many years. The ethicality of borrowing a womb from another woman, the moral and legal complexities surrounding the same have been a matter of concern always. The Surrogacy (Regulation) Bill was introduced by Dr. Harsh Vardhan, Minister of Health and Family Welfare in Lok Sabha on July 15, 2019. The Bill talks about surrogacy as a practice where women gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

KEY POINTS TO THE BILL

The Surrogacy (Regulation) Bill was introduced in the Lok Sabha in 2019. The 2020 Bill is the reformed version of the draft legislation, which was passed by the Lok Sabha in August, 2019. The 2019 Bill had many loopholes and hence was referred to the Select Committee.

The Union Cabinet incorporated all the recommendations of the Rajya Sabha Select Committee before approving the Bill. The Cabinet approved the Surrogacy (Regulation) Bill, 2020 on 26 February, 2020 allowing a “willing” woman to be a surrogate mother and proposing that the Bill would benefit widows and divorced women besides infertile Indian couples. Union Minister for Women and Child Development Smriti Irani also added that only Indian couples can opt for surrogacy in India. Minister Prakash Javadekar said that the Bill is aimed at banning commercial surrogacy and allowing altruistic surrogacy.

Altruistic surrogacy is a no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy comprises surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

The Surrogacy (Regulation) Bill, 2020 allows ethical altruistic surrogacy to the intending infertile Indian married couple between the age of 23-50 years for females and 26-55 years for males.

The Bill suggests to regulate surrogacy by establishing a National Surrogacy Board and State Surrogacy Boards and appropriate authorities in the States and Union Territories respectively. The proposed insurance cover for a surrogate mother has now been increased to 36 months from 16 months since the old bill of 2019.

THE PANEL RECOMMENDATIONS

There were almost 15 major changes recommended by the committee which were made to the Bill.

The Panel recommended that a surrogate mother need not be a ‘close- relative’, the five-year wait period before a couple can apply for surrogacy be done away with, and single woman and people of Indian origin be allowed to access surrogacy. For the time being, only close relatives can be commissioned surrogacy for ‘altruistic’ reasons, and married couples are allowed to pursue surrogacy in the proposed law. The Select committee has recommended that any ‘willing woman’ should be allowed to do it. Restricting the surrogate mother to be a 'close relative' potentially restricts the availability of surrogate mothers affecting the genuinely needy persons, the committee stated. The committee also recommended that insurance cover for surrogate mother to be increased from 16 months to 36 months and favours passing of Assisted Reproductive Bill, 2014, passed before the surrogacy bill. 

As for the eligibility criteria for accessing surrogacy, the panel recommended removing the definition of 'infertility' as the inability to conceive after five years of unprotected sexual intercourse as provided for in the bill on the grounds that it was too long a period for a couple to wait for a child. The Committee stated there may be certain proven medical conditions such as absence of uterus by birth, non-functional uterus, and removal of uterus due to cancer, fibroids etc. or patients with chronic medical condition where normal pregnancy is ruled out and it is medically proven beyond any doubt that surrogacy is the only option.

It was also further noted that the requirement of obtaining certificate of proven infertility is not justified in such cases. They stated that there are conditions under which a single person genuinely needs to avail surrogacy option to have child. One such situation or example is a young widow, who is otherwise capable but cannot carry a child because of fear of social stigma attached to pregnancy of widow in our society. It was also stated that no sex selection can be done when it comes to surrogacy. The Bill also seeks to regulate the proper functioning of surrogacy clinics stating that all the clinics in the country need to be registered by the appropriate authority in order to undertake surrogacy or its related procedures.

The committee also stated a child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. It was proposed that an abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority and this authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.  Although, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

The Committee also recommended that a provision be included in the bill allowing Persons of Indian Origin (PIOs) to avail surrogacy in the country after obtaining a certificate of recommendation from the surrogacy boards. Other recommendations of the Committee relate to enhancing the term of experts on the surrogacy boards from one year as stated in the bill to three years and officials of sufficiently higher rank to be the Chairman and Vice Chairman of Appropriate Authorities as they deal with vital issues concerning surrogacy. 

The Select Committee while strongly backing the provision of the bill allowing only altruistic surrogacy and not commercial surrogacy implied that "The sublime and divine instinct of motherhood could not be allowed to be turned into mechanical paid service of pro-creation devoid of divine warmth and affection."

VIOLATORS OF THE BILL

The offences under the Surrogacy (Regulation) Bill, 2020 include:

undertaking or advertising commercial surrogacy;

exploiting the surrogate mother;

abandoning, exploiting or disowning a surrogate child; and

Selling or importing human embryo or gametes for surrogacy.  The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.  The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.