Surrogacy (Regulation) Bill 2016: A miscarriage of law ?

Surrogacy and the laws relating to it have been in news lately, due to many high profile celebrities opting to have children by way of it and also due to the proposed Surrogacy (Regulation) Bill 2016 which was cleared by the cabinet in August 2016 but has not been passed as law. The need for this surrogacy bill, as pointed out by Union Minister for External Affairs was because India is fast emerging as a surrogacy hub for both Indian and foreigner couples due to cheap availability of the service, and with it the increase in number of cases reported for unethical practices. As surrogacy has long been a grey legal area in India, the Cabinet cleared the 2016 Bill on 24th of August 2016, with the aim of making the legal process of surrogacy more transparent and regulated. The Bill has faced criticism on some of its features, but even the critics agree that there was need to streamline and clear the ambiguities in the legalities of surrogacy.

From a medical point of view, surrogacy is the process when couples, who are unable to conceive a child, choose to artificially inseminate another woman with the sperm of the father, and that woman bears the child and delivers it to the couple. It should be noted that without concrete laws in place there was exploitation of the woman chosen to be the surrogate mother, especially in rural and tribal areas as most woman in India are pushed towards surrogacy to escape poverty, which further ensures their inability to challenge the exploitation. The Bill seeks to reduce this exploitation by giving rights to the surrogate mother and thus to stop the surrogacy rackets being run by various people working as middlemen in the country. Thus, one of the objectives of the Bill is the prohibition of foreigners from commissioning surrogacy in India which would help put an end to these rackets exploiting poor woman for money.


The biggest proposed change of the Surrogacy (Regulation) Bill 2016 is to ban commercial surrogacy in India, which was legal since 2002. In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy, which made the practice legal, but did not give it legislative backing. This led to a booming surrogacy industry which had lax laws and so lacked clear and enforceable regulations.


The present Bill only allows “altruistic surrogacy” for childless couples who have been married for at least 5 years, that too the surrogate mother has to be a close relative of the parents and borrows this concept heavily form the UK’s altruistic surrogacy Bill, only changing the provision for blood relative to “close relative”, a term which will be explained further in the Rules accompanying the Act. The couple will also have to prove their infertility. Union Minister Sushma Swaraj further elucidated this point by saying, that in commercial surrogacy the child never got to meet with the biological mother, which would be removed by the proposed Bill and she also suggested that in case the couples do not have a close relative willing to be a surrogate for them, they should opt for adoption.

Some other important provisions of the Bill are that it requires all surrogacy clinics to be registered and have to maintain records of surrogacy for 25 years. The surrogate mother cannot be paid directly but the clinics can charge for the services rendered in the course of surrogacy. National and state surrogacy boards will also be established under the proposed Act as regulating authorities practices like commercial surrogacy, abandoning the surrogate child, selling/ import of human embryo, exploitation of surrogate mother, have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh. The rights of the surrogate child will be the same as that of a biological child.

The Bill has faced criticism for its provisions which bar single parents, homosexuals, live-in couples to become commissioning parents. The bill also disallows childless or unmarried women to be surrogate mothers. The Surrogacy (Regulation) Bill takes into account the extensive exploitation that is a product of commercial surrogacy and seeks to give better protection to all the parties involved, but it also abides by archaic ideas of who can be parents and who cannot. The Bill other than facing these criticisms have faced backlash from women involved in commercial surrogacy currently, as they would lose their source of income.

Conclusion

Thus, it can be concluded that there are many lacunae in the bill due to which the law may not be able to serve the purpose for which it has been drafted. The need of the hour is to change the surrogacy laws to control the exploitation of the surrogate mother and child as well as to use the surrogacy technique of medical science to the maximum good of the entire stake holders in the society. But the present law unjustly excludes certain sections from going for surrogacy and disallows women to be surrogate mother as their profession which can constitute a violation of their fundamental right under Article 19(1)(g), thus changes in the law are needed.
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Article 19 (1)(g)- All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business