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:
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.
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)
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