The Lok Sabha yesterday passed the Surrogacy(Regulation Bill), which was introduced in 2016. The Bill was passed with a voice vote, amid protests by opposition over Rafale deal.
Prohibition of commercial surrogacy :
The Bill seeks to completely ban commercial surrogacy.
The Law Commission of India, in its 228th Report, had recommended prohibition of commercial surrogacy by enacting a suitable legislation. The statement of objects and reasons of the Bill says "Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by the surrogacy clinics, which leads to rampant of commercial surrogacy and unethical practices in the said area of surrogacy"
Clause 2(f) defines 'commercial surrogacy' as commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother'.
Clause 35 imposes total prohibition of commercial surrogacy, and makes it an offence. Undertaking commercial surrogacy, providing services in relation to that, running surrogacy agencies without legal registration, advertisement of commercial surrogacy services, exploitation of surrogate mothers, selling of human embryos etc are treated as offences.
The offences are treated seriously by the Bill as it prescribes punishment of imprisonment for a minimum term of ten years and with fine which may extend up to ten years.
Only altruistic surrogacy permissible
The Bill permits only altruistic surrogacy, which is surrogacy services given by a person who is genetically related to either of the intending parents, without any monetary consideration.
As per clause 2(b), “altruistic surrogacy" means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;
Only a woman who is genetically related to the intending couple can be a surrogate mother.
Surrogacy services only for legally married Indian couple
The Bill seeks to limit surrogacy services only to legally married Indian couple, who are married for a period of at least 5 years.
'Couple' is defined as 'legally married Indian man and woman above the age of 21 years and 18 years respectively' in clause 2(g)
This means foreigners, same-sex couples and live-in partners cannot go for surrogacy.
The couple has to be clinically certified as infertile in order to legally avail surrogacy services.
Infertility is defined in the Bill as inability to conceive after five years of unprotected sex or other proven medical condition preventing a couple from conception, as per Clause 2(p).
The couple must be between the age of 23-50 years and 26-55 years for female and male, respectively. The intending couple should not have had any surviving child biologically or through adoption or through surrogacy earlier. However, if the surviving child is medically certified to be mentally or physically challenged, or as having life threatening diseases, the couple can avail surrogacy services.
Surrogacy only once in lifetime
A woman can be a surrogate mother only once in life time. Informed consent of the woman in prescribed written form is necessary for becoming surrogate mother.
Prohibition to abandon child
The bill prohibits abandoning the child born through surrogacy. The child will be deemed as a legal offspring of the intending couple.
Prohibition of abortion
The surrogate mother cannot be forced to abort the child by any person or agency.
Surrogacy clinics to be registered
Surrogacy services can be provided only be clinics which are registered in the manner provided in the Bill.
Registration will be given by the appropriate authority only after satisfaction that such clinics are in a position to provide facilities and can maintain equipments and standards including specialised manpower, physical infrastructure and diagnostic facilities as may be provided in the rules and regulations
The Bill constitutes Surrogacy Board at National level. The Board is to advice the Central Government on surrogacy policy and to review and monitor the implementation of the law.
It is also proposed to constitute Surrogacy Boards at the State and Union territory level to perform similar functions in respective States and Union territories.