The Surrogacy Regulation Bill 2016

Subhadeep Tripathi & Abhijeet Mukherjee

The Union Cabinet chaired by the Prime Minister Shri Narendra Modi has given its approval for introduction of the "Surrogacy (Regulation) Bill, 2016". The legislation will regulate surrogacy, prohibit commercial surrogacy and promote ethical surrogacy to needy infertile couples. The rights of surrogate mother and child will be protected.

The Surrogacy (Regulation) Bill, 2016 intends to regulate surrogacy in India by allowing it as an alternative for couples who cannot naturally bear children, lacking other assisted reproductive technology options, are keen to have a biological child, and care able to locate a surrogate mother amid their relatives. Altruistic surrogacy, refers to an arrangement without transfer of endowments as incentive, is right now in practice in some centers across India, though the major portions of surrogacy centers use women who are remunerated for their acts of assistance. A child who takes birth through surrogacy will acquire all the entitlements of a biological child. Infertile Indian couples ranging the ages of 23-50 years (woman) and 26-55 (man) who have a marriage of more than five years and the ones that do not have a living child will be qualified for surrogacy. The surrogate mother has to be a next of kin of the aspiring couple and between the ages of 25-35 years and shall act as a surrogate mother only once in the entirety of her life. Implementation will be undertaken through the arenas of the national and State surrogacy boards. Any establishment involved in implementing commercial surrogacy, relinquishing the child, misusing the surrogate mother, selling or importing a human embryo shall be punishable with an imprisonment for a term that is not less than 10 years and with a fine up to Rs 10 lakh. Registered surrogacy clinics will have to maintain all records for a minimum period of 25 years.

Surrogacy helps the couples who seek a child, but are unable to produce one due to inevitable conditions, such as male infertility, inability by the female partner to bear a child etc.

The Bill seeks to control the illegal practices that pertain within the plethora of surrogacy. It has been found that many couples from outside India, seek surrogacy from Indian Women against meagre payments, most of which then lands with the middlemen, for this the main purpose of the bill is to avert all such discrepancies, and unethical practices that otherwise take place, and are usually not accounted for, as a result many lives of both women and children are lost, without any takers.

In recent years in India commercial surrogacy have risen tremendously and both the practice and practitioners are neither authorized, nor institutionalized by any means or authority. But now Implementation will be through the national and State surrogacy boards. But need for a bill as such was long sought, despite the few shortcomings, this bill is likely to play a huge role in future.

Firstly, Surrogacy is an option for infertile couples in India where there is a great emphasis on pedigree and having one's own child. Even adoption is not an option for people who cling to the notion of lineage. While some people consider adoption as a lacuna of not having the ability to bear the child, surrogacy for them is different in the sense that one after all is having their own child.

The stigmas surrounding adoption, foster care are many and are therefore not the most preferable option for child seeking couples in India, owing to the patriarchal society; male children for child seeking couples remain the first choice.

It is often found in the society that males who are infertile or women who cannot bear children are not looked down into, in very good ways. Surrogacy (Regulation) Act Bill, 2016 therefore also might address the social stigmas, and lacunas that constrict with having children in India.

Secondly, couples from outside of India, also come to seek a child through the medium of surrogacy, but often this practice is highly illegal and dangerous for the health of women who get themselves involved in surrogacy as a mere trade option for monetary reasons. Therefore regulation here becomes necessary so that all these threats are averted. The need was exceptionally felt when in 2012, an Australian couple who had twins by surrogacy, arbitrarily rejected one and took home the other, because one of the twin was born with Down syndrome.

Thirdly. The practice of surrogacy also involves a lot of middle-men, who charge a ransom from couples who come to seeking children, these middlemen not only charge a huge sum of money, but also force women into surrogacy through the means of threats, and by luring poor women with money. The dark side often results in surrogate mothers receiving no or little money, which they cannot often suffice with. This bill also seeks to address and curb the role of middlemen in this lieu, who often do this completely for selfish motives and women are trapped.

Fourthly, there was no law to uphold the dignity of surrogate mothers and the children born from them; they were often looked upon as down-trodden women and illegitimate children, therefore this law seeks to do justice to the women engaged in this practice and give a legal status to the children born from the surrogate mothers.

Even after being legalized, surrogacy remains within the darker realms of the society and hasn't yet found any mainstreaming or broad daylight, as it is not a crime to bear another's child. The bill doesn't provide to penalize for the exploitation of women and children born from surrogacy.

The bill also gives emphasis only to heterosexual couples seeking a child, whereas couples of same sex seeking a child, still remains disputed. This bill is important because this will give healthy life to a baby because after passing that bill the babies will be protected as it will be made compulsory for the couple to accept the baby. Previously it was reported in a section of press that babies rejected by couple as they changed their mind in case the baby was born with any problem. The surrogate child will also have same status as own child as they will have equal rights. The most important aspect of the bill is that it will reduce women mortality rate. It will also stop the foreigners to come to India for surrogacy. Many countries in Europe have completely stopped surrogacy by strict legislations, both to protect the reproductive health of the surrogate mother and the future of the newborn child. Child who will born from surrogacy will have all the rights which one normal child will have. The problem of altruistic surrogacy will be stopped by this move of the government. Limiting women surrogacy by only once will stop those people's income who survive in this business and exploitation of women will be stopped but this government's homophobia exposed when it banned surrogacy for homosexual couples.

Concluding, it might be said that the government has taken a very good step to bring surrogacy out of the dark realms, and that the bill will help a lot of people seeking children, and would also in a way to prevent illicit exploitation of women in this regard, but it also needs a better institutional framework and a pool of guidelines that will ensure that rights owing the persons involved in surrogacy, especially Women and Children are upheld, and no more lives will be at stake.

subhadeep.tripathi@gmail.com

Frontier
Vol. 49, No.28, Jan 15 - 21, 2017