Critical Analysis of the Surrogacy (Regulation) Bill, 2019

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INTRODUCTION:

Surrogacy generally refers to the process of one woman carrying a baby for another woman with the intention of handing over the baby to the other woman, after the delivery of the baby.[1] Surrogacy can be classified into either traditional or gestational surrogacy.[2] Traditional surrogacy refers to a method where a woman provides her own egg for fertilization by artificial insemination, and later carries the fetus and delivers the baby for another person or couple. Whereas, gestational surrogacy refers to a process where another woman, mostly the genetic mother, provides the egg, which is fertilized through In Vitro Fertilization (IVF) and implanted in the surrogate woman[3], who carries the baby and hands over the baby after the delivery to the intended parents.

Further, surrogacy can be classified into two categories based on the monetary rewards received by the surrogate mother, namely, commercial surrogacy and altruistic surrogacy.[4] Commercial Surrogacy refers to an arrangement wherein the surrogate mother receives financial reward (excluding the medical, insurance expenses)[5] for the pregnancy based on a contract entered into by the surrogate mother and the intended parents. Whereas, Altruistic Surrogacy refers to an arrangement where the surrogate mother receives compensation only for insurance and medical expenses. Commercial surrogacy is banned in many countries[6], such as Belgium and United Kingdom, as it refers to renting of a woman’s womb.[7] However, in India, commercial surrogacy is not yet banned. Nevertheless, steps have been taken in India to ban commercial surrogacy.

LEGAL HISTORY OF SURROGACY LAWS IN INDIA:

Prior to 2005, the Indian Contracts Act, 1986 governed the surrogacy arrangement between the surrogate mother and intended parents wherein the parties entered into an contract in order to regulate the rights and limitations of each parties with relation to the baby and the compensation.

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In 2005, owing to the expansion of the surrogacy market, the Indian Council of Medical Research issued guidelines to regulate all arrangements and contracts with reference to surrogacy. In 2009, recognizing and acknowledging the grave need to safeguard the rights of women, the Law Commission of India suggested[8] prohibition of commercial surrogacy and recommended  enactment of a law to regulate all arrangements regarding surrogacy.

 

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The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016. The Bill was referred to the Standing Committee on Health and Family Welfare, who submitted its report on August 10, 2017. However, the Bill lapsed along with the dissolution of the 16th Lok Sabha. Thereafter, The Surrogacy (Regulation) Bill, 2019 ( “the Bill”) was introduced in the Lok Sabha by Dr Harsh Vardhan, the Minister of Health and Family Welfare on July 15, 2019, replacing the 2016 Bill. The Bill was passed in Lok Sabha on August 05, 2019 and later, referred to the Select Committee on November 21, 2019.

SALIENT FEATURES OF THE BILL:

 

  1. Prohibition of Commercial Surrogacy:

 

The most salient feature of the Bill is the prohibition of Commercial Surrogacy. The Bill permits only Altruistic arrangement of surrogacy, after fulfillment of certain conditions and procedures as prescribed under the Bill. Additionally, it prohibits issuance, publication, distribution and communication of any advertisement in relation to Commercial surrogacy. In order to avoid confusion, the term ‘advertisement’ is further explained in the Bill.[9] The penalty for the violation of the provisions and indulgence in commercial surrogacy is prescribed under the Bill.

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  1. Conditions under which Surrogacy is permitted:

 

The Bill permits Surrogacy only under certain conditions, namely, when the intending couple suffers from infertility, when it is for Altruistic purpose and not Commercial purpose, when the production of children is not for sale, prostitution or any other forms of exploitation, and for any other condition or disease specified through regulation.

 

  1. Eligibility criteria for intending couple and surrogate mother:

 

The bill makes it mandatory for the intending couple to obtain a ‘certificate of essentiality’ and a ‘certificate of eligibility’ from the appropriate authority. The surrogate mother is also required to obtain a certificate after fulfillment of certain conditions.

 

  1. Rights over the child:

 

The surrogate mother will have the right withdraw from the surrogacy only before the embryo is implanted in her womb and thereafter, she will have the right to abort the child only with the permission of the appropriate authority. Once, the child is born and the surrogacy procedure is complete, the intending couple will be considered to be the biological parents of the child.

 

  1. Registration of surrogacy clinics:

 

The Bill makes registration of clinics mandatory in order to undertake surrogacy and all related procedures. The Clinics have to apply for registration within a period of sixty days from the date of appointment of the appropriate authority. The same might be accepted or rejected within ninety days. In case of rejection, the Clinics have the right to appeal within 30 days of the receipt of the information, to the State or Central government.

 

 

ISSUES NOT ADDRESSED BY THE BILL:

 

  1. Flaws in the definition of surrogacy:

 

As per the Bill, infertility is considered to be a mandatory requirement for an indenting couple to obtain a ‘certificate of eligibility’. However, the definition of infertility includes only inability to conceive after five years of unprotected coitus. The definition does not cover circumstances when the couple is unable to bear a child. Sometimes the couple may be able to conceive the child but might face several issues due to hypertension and diabetes which might lead to several miscarriages.

 

  1. Excessive delegation of powers to the Surrogacy Boards:

 

The Bill provides the surrogacy boards with the power to make policies relating to surrogacy arrangements, to make code of conduct for surrogacy clinics. It also gives them the power to add additional eligibility criteria for intending couples, and add ‘any other condition or disease’. Providing such extensive and various powers to the Boards might lead to excessive delegation of power. In the case of The Registrar of Co-operative Society v. K. Kunjabmu and Ors.[10], the court held that the legislature cannot delegate its essential legislative function. The law making power in case of certain matters such as prescribing conditions for intending couples should be with the legislature. The Bill is also unclear on what is meant by any other condition and if it restricts to only medical conditions.

 

  1. ‘Close Relative’ not defined:

 

The Bill makes it mandatory for the surrogate mother to fulfill certain conditions in order to gain the eligibility certificate. One of the conditions being, the surrogate mother should be the close relative of the intended couple. However, the Act does not specify who amounts to close amount in such scenarios.

 

  1. Abortion of Surrogate Child:

 

The Bill specifies that the intended parents will be considered as biological parents of the child. The Bill also states that in order to abort the child, the written consent of the surrogate mother should be obtained along with an authorization by the appropriate authority. The intended parents have no say if the surrogate mothers wants to abort the child and additionally, they will not have any right to ask the surrogate mother if the child is at a risk of physical or mental abnormalities.

 

CONCLUSION:

 

The introduction of the Bill is considered to be a big step in India, as there exists no law governing the Surrogacy laws in India. The Bill aims at prohibiting the commercial surrogacy, which is much needed and introduces various machineries such as the Surrogacy Boards and appropriate authorities in order to regulate the surrogacy arrangement in India. However, there are various flaws in the Bill introduced and it is necessary for the legislature to fill these loopholes in order to have an effective implementation of the Bill.

 

 

[1] Dame M. Warnock, Department of Health and Social Security, Report of the committee of inquiry into Human fertilisation and embryology 12 (1984).

[2] Alayna Ohs, The Power of Pregnancy: Examining Constitutiona Rights in a Gestational Surrogacy Contract, 29 HASTINGS CONST LQ 339 (2001).

[3] Test tube triumph & tragedy- Nobel for UK scientist stirs memory of a Bengal doctor, THE TELEGRAPH, October 5, 2010, at 10.

[4] Tirth Bhatt & Garv Malhotra, Legalization of Commercial Surrogacy and the Rent-a-Womb Culture: Is India’s Stand Sound Enough, 2 Nat’l L.U. Delhi Stud. L.J. [42] (2013).

[5] Casey Humbyrd, Fair Trade International Surrogacy, 9 Developing word bio-ethics 112 (2009)

[6] Nadimpally, Sarojini, Sneha Banerjee, and Deepa Venkatachalam, Commercial Surrogacy: A Contested Terrain in the Realm of Rights and Justic, KUALA LUMPUR: ASIAN-PACIFIC RESOURCE AND RESEARCH CENTRE FOR WOMEn (ARROW), 2016 Page number – 4.

[7] Alayna Ohs, The Power of Pregnancy: Examining Constitutional Rights in a Gestational Surrogacy Contract, 29 HASTINGS CONST LQ 339 (2001) at p. 19.

[8] Law Commission of India, 228th Report on Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy (August 2009).

[9] The Surrogacy (Regulation) Bill 2019 § 35.

[10] The Registrar of Co-operative Society v. K. Kunjabmu and Ors, AIR 1980 SC 350.

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