Introduction:
The Surrogacy (Regulation) Bill was passed in the year 2019 in the Lok Sabha and this bill was introduced by the Minister of Health and Family Welfare. This bill says that when a woman gives birth to child for an intending couple, she must hand over the child to the intending couple.
Regulation of surrogacy:
This bill does not put bar to altruistic surrogacy but prohibits commercial surrogacy. Altruistic surrogacy says that only medical expenses and insurance coverage must be given to the surrogate mother during her pregnancy and no other benefits would be given to her i.e. to say no monetary compensation.
Purposes for which surrogacy is permitted:
- Surrogacy is permitted for intending couples who suffer from proven infertility;
- It is permitted for altruistic;
- Surrogacy is not permitted for commercial purposes.
- It is not for producing children for sale, prostitution or other forms of exploitation; and
Eligibility criteria for intending couple:
The couple who wants to take a child must have ‘certificate of essentiality’ and a ‘certificate of eligibility’.
To get a certificate of essentiality, one must fulfil the following conditions:
- “Intending couples must take certificate of proven infertility from the District Medical Board”
- “ an order of parentage and custody of the surrogate child passed by a Magistrate’s court”
- “The couples must provide insurance coverage for a period of 16 months to the surrogate and other benefits during her pregnancy as specified by the law.”
They must also get certificate of eligibility after fulfilment of the under mentioned conditions:
- “The couple being Indian citizens and married for at least five years”
- “ Between 23 to 50 years old (wife) and 26 to 55 years old (husband)”
- “ They do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness”
- “ Other conditions that may be specified by regulations”
Eligibility criteria for surrogate mother:
To get a certificate of eligibility the surrogate mother has to be:
- “A close relative of the intending couple”
- “ A married woman having a child of her own”
- 25 to 35 years old
- “ a surrogate only once in her lifetime”
- “ possess a certificate of medical and psychological fitness for surrogacy.”
Registration of surrogacy clinics:
No surrogacy clinics can deal with any type of surrogacy related procedures unless the surrogacy clinic is registered under the law and by the competent authority. And the clinics should apply for registration within 60 days from the date of appointment of the competent or appropriate authority.
Penalties:
There are penalties for offences committed relating to surrogacy. The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
Legal Status of a Surrogate Child:
This bill says that any child born in a surrogacy procedure should be the child of the intending couple and the child will have all the powers to enjoy his or her rights which a natural child would enjoy.
Process for Commissioning a Surrogacy:
Surrogacy procedure will be done in a registered clinic which is registered with the government and to get a child the intending couples should fulfil the requirements mentioned under the law and the surrogate mother should also fulfil the conditions given under the law. They should get few certificates from the government authority which is specified above.
Limitation on use:
A married Indian couple can go for surrogacy procedure who are between 23 to 50 years of age (wife) and for husband it is 26 to 55 years of age. This bill does not allow any unmarried couples or widows or divorcees, etc to use surrogacy procedure.
Familial Surrogacy:
The concept of “close relative” is not mentioned in the bill. So, close relative could be anyone who is competent under the bill to be a close relative.
Lok Sabha Debates:
“The Motion For Consideration Of The Surrogacy (Regulation) Bill, … on 19 December, 2018”
“ In 2008, the Supreme Court of India in the Baby Manji Yamada vs Union of India case, highlighted the lack of regulation for surrogacy in India. In 2009, the Law Commission of India observed, to which the Minister referred to, that surrogacy arrangements in India were being used by foreign nationals and it could lead to exploitation of poor women acting as surrogate mothers. The Law Commission recommended prohibiting commercial surrogacy, allowing altruistic surrogacy and enacting a law to regulate surrogacy.”
“India has an estimated 20 to 25 million infertile couples. For medical practitioners, it is a market opportunity. There were 59 clinics offering IVF, that is, in vitro fertilisation in 2001. By 2011, it went up from 59 to 600 within a span of 10 years. The Minister can tell us what the number is today if he has made a count.”
“Commercial surrogacy has been allowed in India since 2002 but remains an unregulated grey area. In 2008, the court said in a judgement that surrogacy as a medical procedure is legal in several countries including in India without elaborating on what makes surrogacy legal.”
“In 2008, another case on the citizenship of surrogate babies led the Gujarat High Court to state that there is an extreme urgency to push through legislation which addressed issues that arise out of surrogacy.”
“In order to initiate a surrogacy procedure, the surrogate mother and the intending couple are required to obtain certificates of eligibility and essentiality upon fulfilling various conditions. However, the Bill does not specify a time limit by which the authority will grant these certificates.”
“The Bill does not specify a review or appeal procedure in case the surrogacy applications are rejected. I would like to remind this House that other laws such as those on Transplantation of Human Organs and Tissues Act, 1994 and the adoption-related provisions of the Juvenile Care and Protection Act, 2015 have prescribed time periods within which applications should be processed and they have also provided procedures for review and appeal in case applications are rejected.”
Case Analysis:
“Baby Manji Yamada vs Union Of India &Anr on 29 September, 2008, Supreme Court of India”
“Stand of respondent No. 3 was that there is no law governing surrogation in India and in the name of surrogation lot of irregularities are being committed. According to it, in the name of surrogacy a money making racket is being perpetuated. It is also the stand of the said respondent that the Union of India should enforce stringent laws relating to surrogacy. The present petitioner has questioned the locus standi of respondent No. 3 to file a habeas corpus petition. It is pointed out that though custody of the child was being asked for but there was not even an indication as to in whose alleged illegal custody the child was.
It is stated that though the petition before the High Court was styled as a “Public Interest Litigation” there was no element of public interest involved. Learned counsel for respondent No. 3 with reference to the counter- affidavit filed in this Court had highlighted certain aspects relating to surrogacy. The learned Solicitor General has taken exception to certain statements made in the said counter affidavit and has submitted that the petition before the High Court was not in good faith and was certainly not in public interest.”
“ Such other functions as it may consider necessary for the promotion of child rights and any other matter incidental to the above functions.The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.”
“Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”
“Altruistic surrogacy” is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).”
“Commercial surrogacy” is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms “wombs for rent”, “outsourced pregnancies” or “baby farms”.
“Surrogates may be relatives, friends, or previous strangers. Many surrogate arrangements are made through agencies that help match up intended parents with women who want to be surrogates for a fee. The agencies often help manage the complex medical and legal aspects involved. Surrogacy arrangements can also be made independently. In compensated surrogacies the amount a surrogate receives varies widely from almost nothing above expenses to over $ 30,000. Careful screening is needed to assure their health as the gestational carrier incurs potential obstetrical risks.”
Conclusion:
The above description talks about the requirements and liabilities of the surrogate mother and intending couple. There are many disputes or crimes in West Bengal as well as in whole India related to surrogacy. So, government of India Launched the surrogacy bills 2016 and 2019 to eradicate the wrongs done in this field.
Chenoy Ceil Lawyer 