The Surrogacy (Regulation) Bill, 2016: A Critical Appraisal
India is considered as a major destination for foreigners for ART services particularly for surrogacy practices. As a result, the surrogacy business is well-established in India, with an estimated annual turnover of billion dollars. Despite this growing prominence of the Indian surrogacy industry in recent years, it is strange but true that the surrogacy practices in India remain largely unregulated. However, recently the Surrogacy (Regulation) Bill, 2016 was introduced by Minister of Health and Family Welfare in Lok Sabha and which propose to ban commercial surrogacy in India.
Critical Appraisal of the Bill
The Surrogacy (Regulation) Bill, 2016 is considered as an important step towards the regulation of surrogacy practices in India. The Bill focuses on preventing commercial surrogacy, exploitation of surrogate mothers and child born through surrogacy. It also provides a detailed regulatory framework for Surrogacy Clinics. However this Bill raises several questions and concerns. They are as follows:
- Ban on Commercial Surrogacy: In the expanding era of human rights jurisprudence, one can trace the foundation of right to use surrogacy and be an intended couple as a part of Right to Personal liberty, Right to Procreation, Right to Found a Family and Right to Privacy. The right to reproduction and the right to make reproductive choices are also increasingly seen as a vital component of individual or personal autonomy. The ban on commercial surrogacy is only due to the fact that there is a chance of exploitation of surrogate mother. It is to be noted that there are various filed of activities were there is a chance for exploitation, the best way to prevent such exploiation is not porhibiting the activity as such rather a strong regulation can take care of such problems. Therefore, the ban on commercial surrogacy on the ground of exploitation is irrational and is a direct enchrochment on the couples right to reproduction.
Further, the enjoyment of benefits of scientific and technological progress and its application is recognized as a human right and is included in the Universal Declaration of Human Rights (Article 27) and the International Covenant on Economic, Social and Cultural Rights(Article 15), etc. One of the blessings of the modern day advancements in medical science and technology is the development of Assisted Human Reproductive Technologies including surrogacy. These technologies are helpful to infertile couples as well as any other individuals who wish to beget children. Since there is a right which allows an individual to enjoy the benefits of scientific and technological progress, undoubtedly individuals can take the benefit of these technologies for begetting a child. Hence it can be reasonably argued that surrogacy which is a gift of scientific technology can also be used by an individual for begetting a child. Any restriction on such right should be considered as a violation of his right to enjoy the benefits of scientific and technological progress.
Further ban on commercial surrogacy will adversely affect the interests of prospective surrogate mothers. Most of the woman who agrees to act as a surrogate is due to their financial necessity. The proposed ban on commercial surrogacy will prevent those women from acting as a surrogate and thereby obtain the required money. It may force such women to do other illegal acts such as prostitution or theft for finding the money.
- Restriction for International Surrogacy: As a result of globalisation and liberalisation the practice of procreative tourism has developed. Procreative tourism is a practice in which people go abroad for assisted reproductive technology services and have a child through the said process. Not only the laxity of legal framework but also the less cost, more efficient, or availability of a wider range of services is also a reason for development of procreative tourism. Among various categories of cross-border reproductive sevices, international surrogacy, that is the act of infertile parents travelling internationally to engage the paid services of foreign surrogates to carry their babies to term is more being practiced. India is rapidly developing as a major destination for procreative tourism particularly for surrogacy practices. Hence, limiting surrogacy only to Indian citizens is a measure which is against the contemporary developments in international trade relations.
- Close Relative: The Bill specifies that, only a ‘close relative’ of intended couple can act as a surrogate mother. However, the Bill does not define the term ‘close relative’. There may be couples whose close relatives may not be willing to act as a surrogate or such relatives does not satisfy other eligibility conditions mentioned in the Bill. In such cases the intended couples will not be able to enjoy the benefits of surrogacy procedures and to satisfy their joy of having a child genetically related to them. Further, when close relatives act as a surrogate it is obvious that both surrogate mother and child will know about the facts of surrogacy. It may cause family problems at a later stage between the surrogate child and the surrogate mother. The knowledge about surrogacy and surrogate mother may also cause psychological problems to surrogate child.
- Waiting period of five years: It is to be noted that medical infertility is usually defined as the inability to achieve pregnancy after a year or two of trying to conceive a child through regular sexual intercourse. Hence, there is no reason to compel the intended couple to wait for a period of five years for availing the surrogacy service.
- Maternity Relief: The issue of maternity relief for intended couple as well as the surrogate mother has already been discussed by different High Courts in India. However, the Bill is silent about this issue.
- Designer Baby: One of the major criticisms against surrogacy is that, it may be used to produce children of desired sex and with desired characteristics, i.e. surrogacy may be used for the creation of designer babies. However, the Bill is silent about this issue.
- Certificate of Eligibility: The Bill specifies that in order to initiate a surrogacy procedure, the surrogate mother and the couple intending to commission the surrogacy are required to obtain certificates of eligibility and essentiality from the relevant appropriate authorities at the centre or state. However, the Bill does not specify a time period by which the appropriate authority will grant these certificates. Further, the Bill does not specify a review or appeal procedure in case the application for the certificates is rejected.
- Rights of Intended Couples: In a surrogacy practice the following rights of the intended couple have been identified as essential, (a) the right to select surrogate mother of their own choice subject to restrictions by the State on grounds of public interest; (b) right to impose reasonable restrictions upon surrogate mother as are necessary for the normal development of the child; (c) right to information and visit surrogate mother during pregnancy; (d) right to custody of the child within 72 hours of its birth. However, the Bill does not make any reference about these rights.
- Breach of Surrogacy Contracts: The Bill is silent about the issue of a beach of terms and conditions of surrogacy by surrogate or indented couple during the surrogacy process or afterwards.
The adoption of Surrogacy (Regulation) Bill, 2016 establishes a regulatory framework for good surrogacy practices in India. However, the proposed ban imposed by the Bill on commercial surrogacy and exclusion of foreign couples from availing surrogacy services are considered as the biggest flaw of this Bill. The possibility of exploitation of surrogate woman and protection of interests of surrogate and surrogate child could have been effectively ensured through proper framework.
The Bill could have provide a framework for establishing an effective mechanism for ensuring that surrogacy contracts are made properly by the parties and are not discriminatory or adversely affecting the interests of the surrogate women. Further, the Bill could have introduced a process of ‘Vetting of Surrogacy Contracts’, i.e. every surrogacy contracts shall be reviewed by an appropriate competent authority. It should be made mandatory for the parties to submit their surrogacy contracts before the competent authority for vetting prior to the initiation of surrogacy procedures. Only those surrogacy contracts which have been reviewed and approved by the competent authority shall be considered as valid and enforceable. The proposed National Surrogacy Board and State Boards can easily implement the process of ‘Vetting of Surrogacy Contracts’. Thus it is submitted that the proposed ban on commercial surrogacy and restriction to avail surrogacy by foreign couples is an improper way to deal with the issue.
Dr. Aneesh V. Pillai is an Assistant Professor, School of Legal Studies, Cochin University of Science and Technology, Kerala.
This article is first published in 2017 (1) KLJ 13 (J)
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.