Short Note on Recapitulation of Indian Surrogacy Bill, 2019

ABSTRACT: -

The Surrogacy Bill, 2019 was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15,2019. The bill defines surrogacy as a practice where a woman gives birth to child for an intending couple with the intention to hand it over after the birth to an intending couple. The bill prohibits commercial surrogacy, but allows altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward. The history of Surrogacy in India shall be presented along with its mentions in the holy scriptures. Also, the types of surrogacy methods shall be noted down. Then the entails of the bill will be presented along with scenarios as to what will happen if the bill is passed. A report by the UN on surrogacy shall also be provided. Back in 2012, Justice K.S Puttaswamy in a landmark judgement had recognised constitutional right of women to make reproductive choices citing personal liberty under article 21 of the constitution, this bill completely disregards the laws and rights that the bill violates and provides solutions for the same. A comparative study shall be done between India and other countries to point out the loopholes in the bill. The paper shall try to highlight the main issues in the Surrogacy Bill 2019 and try to provide amendments for the same.

INTRODUCTION: -

Nature has entrusted us with a beautiful capacity to procreate. But not all couples are fortunate enough to have a child therefore the prospective parents choose various alternatives to natural child conception and pregnancy which might include methods like In-Vitro Fertilization (IVF), Intra-Uterine Injections (IUI), Artificial Reproductive Technology (ART) and Surrogacy. Under Black’s Law Dictionary surrogacy is defined as a process of carrying and delivering a child of another person. This process involves arranging a surrogate mother who keeps the child of prospective parents in her womb and delivers it to the couple. Surrogacy is a procedure that involves both medical and legal process. The main reasons why couples opt for a surrogacy is mainly because of infertility or physical problems, past trauma and medication. Same sex couples and single parents also opt for this method. The Surrogacy bill issues different guidelines and conditions for surrogacy and lays down rigid conditions through Indian Council of Medical Research (ICMR) for the couples while choosing surrogacy. This bill imposes various restrictions like banning of commercial surrogacy, allowing only Indian married couples to take up this method and banning sale or purchase of human embryo for the same.

HISTORY OF SURROGACY IN INDIA: -

Surrogacy is known to have been practiced since ages in India and has also been mentioned in the holy Indian scriptures like the Mahabharath where Gandhari, wife of Dhruthrashtra remained pregnant for two full years, after which she gave birth to a mass of cells. This mass had hundred and one cells and Bhagwant Vyas who had identified them grew them in-vitro in a nutritive medium ensuring their growth. That is how the mighty Kauravas were born. Other similar example is that of Sage Gautama who produced two test-tube babies through his own semen called Kripa and Kripi. Identically the greatest teacher of all time Drona who taught the Pandavas and Kauravas was born through an invitro fertilization technique adopted by Sage Bharadwaj. The birth of Drishtadyumna and Draupadi also revolves around similar guidelines, it is said that King Draupad had enmity against Dronacharya and hence wanted to give birth to a son who would take his part of the revenge. Then he was advised by Rishi to adopt Artificial Insemination Homologus but his wife refused it after which the King’s semen was put into a yagnakunda and hence his children were born. The Bhagavat Gita too talks about surrogacy in its mention of the birth of Lord Krishna, the 70th child of Devaki and Vasudeva. Therefore, it would not be wrong to conclude that surrogacy is not a new concept in India and has been practiced for ages.

SURROGACY AND ITS TYPES: -

There are basically six types of surrogacy methods that are enlisted: -

Traditional Surrogacy: In this type of surrogacy the surrogate is related to one of the intended parents and it also provides a genetic link that would not have been possible with a donated egg.

Gestational Surrogacy: Intended parents who are wary of the legalities and emotions involved in traditional surrogacy will want to choose this method.

Commercial Surrogacy: Surrogacy or its related procedures undertaken for a monetary benefit or reward come under this category.

Altruistic Surrogacy: Surrogacy that involves no monetary compensation to surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

Domestic Surrogacy: If the surrogacy procedure takes place in the intending couple’s own country if it is legally allowed then such surrogacy is called domestic surrogacy.

International Surrogacy: If the surrogacy procedure takes place in some other country because in the country where the intending couple lives does not allow surrogacy then it is called International Surrogacy.

WHAT DOES THE BILL ENTAIL?

The Surrogacy Bill, 2019 was introduced by the Health Minister of India Dr. Harshvardhan in the Rajya Sabha. He is of the opinion that this bill is a ‘game- changer’ since it addresses the problems related to Surrogacy in the country, after a long duration. The bill is being debated rigorously due the kind of reformations that are being brought in. To understand if the bill is violative or not it is important to understand the kind of changes that are being introduced in the bill. The following are the reformations that are entailed with the bill:-

. The bill brings a complete ban on the practice of Commercial Surrogacy but allows the practice of Altruistic Surrogacy.

. The bill enforces all the surrogacy clinics in the country that practices surrogacy or its related procedures to get registered under the Government.

. The bill sets up certain eligibility criterions for the surrogate as well as the intending couples before opting for the procedure.

. A certain authority shall be set up that will check if the intending couples are infertile and provide them with a certificate for the same. It will also be involved in giving the custody of surrogate child to the parents and also will make sure that the medical expenses and insurance is covered.

. For the intending couples to adopt they should be married for five years and they should be citizens of India. The woman should belong to the age group of 23 to 50 years and the man should belong to the age group of 26 to 55.

. In addition to all of these, the criterions for the surrogate mother go further. She should be a close relative of the intending couple, she should be between the age of 23 to 35 years, she should be a surrogate only once in her lifetime, she should be certified of both physical and mental fitness and the gametes involved in the procedure should not be her own.

. Contravention of the bill would involve 10 lakhs fine and 10 years of imprisonment.

WHAT HAPPENS IF THE BILL IS PASSED?

The fact that the Surrogacy Bill 2019 is being passed forces us to revisit and rethink the bill. There is no denial that the bill requires regulation but are the regulations being subscribed valid? What will be the consequences of the passage of this bill? Below mentioned are the conflicted that are likely to arise: -

The first problem that might arise is that if an Indian based man or woman is married to a foreign citizen and wants to opt for surrogacy in India, they would be unable to, since the bill specifies that only Indian couples can opt for the procedure.

The bill mentions that only married couples can opt for this procedure, which means that widows, divorcees, single parents, live- in partners and heterosexuals are completely excluded from the bill. This in itself is very derogatory and discriminatory in nature.

A clause in the bill states that only ‘close relatives’ can be surrogates which again leads to another set of problems. The Indian society is very patriarchal in nature and this might lead to domestic violence where the woman in the family is forced to be part of this procedure. This clause might also lead to other problems like inheritance and property disputes, as under the personal laws of the various religions.

The entire bill is not at all flexible in any way and is in flow with the typical anarchic family system that brings down the practicality factor in present times.

The bill is also discriminatory towards children with disabilities: Clause 4(iii) (c) (III) tries to equate a child with a mental or physical disability with ‘childlessness’. In a scenario where a child is diagnosed with a life-threatening disorder, it is almost like the parents are provoked to adopt for surrogacy. The clause has a very instrumentalist view of having children which is in itself biased against children with disability.

Section 8 of the bill also suggests that the number of oocytes that are to be implanted in the surrogate shall be done in accordance to the prescription of the doctor. Here the surrogate shall not be informed of the number. This is an absurd law since the woman has absolutely no idea as to what is happening to her body. Not only is this violating her right to be informed medically, but it also defies the basic human right of the lady.

Another loophole is the insurance clause in the bill. It in any ways does not describe as to what happens in the case of the fail of the pregnancy or the death of the surrogate due to childbirth.

Further, the bill asks only the surrogacy clinics to get registered under government and does not speak anything about the Assisted Reproductive Technology. If they want to regulate commercial surrogacy then it should begin with the ART clinics.

Another prominent issue that arises here, is the 5 year requirement of a valid marriage before this method of obtaining a child can be undertaken. Couples who get married at an older age, or who want a child from their second marriage have not especially been catered for.

LAWS THAT ARE VIOLATED BECAUSE OF THE PASSING OF SURROGACY BILL: -

Back in the year 2012 in a landmark judgement Justice KS Puttaswamy recognised the constitutional rights of women to make reproductive choices citing personal liberty under Article 21 of the Indian Constitution. The law cannot in any ways encroach the rights of women, which is clearly being violated as per this bill.

UNITED NATION’S REPORT ON SURROGACY: -

A reported was presented to the UN Human Rights Council by Ms Maud de Boer-Buquicchio which showcase the abusive practices of commercial and altruistic surrogacies. As per her studies, both these practices have similar lacunas, and equally involve sale and exploitation of children as well as woman. The report shows that national laws governing surrogacy vary from absolute prohibition (in France, Germany or Italy, for example) to extreme liberal regimes where even commercial surrogacy is permitted (Georgia, Ukraine, Russia and some states in the US). Other countries, such as Ireland, do not have a proper legislation but surrogacy arrangements are completed using pre-existing laws governing parentage and adoption. The report states that “the required solution is international and national frameworks that clearly regulate surrogacy”, suggesting that the same principles that have led to the restrictions on international adoptions through the years should now be applicable to surrogacy. Those principles include “the best interest of the child as a paramount consideration, the lack of a right to a child, strict regulations and limitations regarding financial transactions, rights to identity and access to origins, and protections against exploitation.” Cross-border surrogacy, when couples or singles travel to avoid legal restrictions at home, is a contentious issue and the proposed Irish legislation does not address it properly. Reproductive tourism is becoming more common and problematic as sometimes the different steps of the process (in vitro fertilization, embryo transfer, pregnancy, birth, etc.) happen in different jurisdictions, making everything extremely complex to regulate. National bans or restrictions become easily void. This is worrying. If we want to avoid the risk of sale of children (paying one woman for her egg and another for the use of her womb), as highlighted by the UN report, it is essential to maintain human rights standards against the pressure created by lobby groups and the surrogacy industry.

COMPARATIVE ANALYSIS: -

To have a better understanding as to how the Surrogacy Bill of 2019 is a violation against women its important to know what is the condition of similar legislatives in other nations across the world. A comparative analysis of surrogacy bills of four different countries have been done in this particular paper i.e. India, United Kingdom, South Africa and Russia. In order to do so a total of ten criterions have been taken into consideration.

Type of surrogacy allowed: India, UK and South Africa allow altruistic surrogacy and ban commercial surrogacy while Russia allows both kinds of surrogacy.

Payment to the surrogate: In India, UK and South Africa the payment includes only the medical expenses and insurance while in Russia there is no limit.

Requirement of being married: In India there is requirement of being married while in the other three countries there is no such requirement.

Citizenship: India requires both the parents to have citizenship, UK requires both the parents to be permanent residents of UK, South Africa requires at least one parent to be the resident of South Africa and Russia does not have any such requirements.

Existence of medical reasons: India requires the couple to prove infertility while there is no such requirements in the other three countries.

Age of the surrogate: Indian age limit is 25-35 years, UK and South Africa does not have an age limit while Russian age limit is 20-35 years.

Relation to the intending couple: Only in India is there a requirement for the surrogate to be closely related to the intending couple. The other three countries do not have such a clause.

Requirement of the surrogate to be married: In India the surrogate must be married, but such a requirement is not mandated in the other three nations.

Number of times one can be a surrogate: Only India can a woman surrogate once in her lifetime, and just like the previous conditions, there is no limit for the other three countries.

Imprisonment for engaging in commercial surrogacy: In India and South Africa the imprisonment is ten years, in UK its is three months and in Russia there is no such provision.

From the above comparison we can conclude that the surrogacy bill in UK and South Africa is semi- fluid, in Russia it is completely fluid but in India lacos the required relaxactions. It is the only country with such degrading criteria and undesired restrictions.

CONCLUSION: -

The Surrogacy Bill, 2019 is one of the most controversial and debatable bill in the present Indian social system. Through out the paper mentions of the patriarchal Indian Government trying to impose its views on women can be observed. They are completely ignoring as to how the bill violates a woman’s right over her body. The government thinks that by banning commercial surrogacy it can stop child and woman extortion but that is not the case. A cycle as fatal as such will continue even with the presence of altruistic surrogacy. By this bill the government will also be disregarding the heterosexuals, divorcees and widows, taking away their right to equality. Even through the comparative analysis we can see non- fluidity of the surrogacy bill in India.

Hence, the government of the nation needs to take up the responsibility of amending the bill. The first and foremost change must be to include the 'right to be informed' for the surrogate. The second change must be brought about in the criteria of enabling this method. Widows, single parents divorcees and unmarried couples must be allowed to opt for surrogacy, and a scope must remain for inclusion of heterosexual couples. A provision of including Commercial Surrogacy can also be considered, as it will not only generate income for the woman who agrees to carry the child, but also compensates for the pain she must endure in order to give birth. These initial steps can pave the way forward for allowing an unmarried woman who is not related to the couple to become a surrogate and. These changes will not only improve the conditions of women and children, but also provide a steady legislation, which in turn would better be able to take on the challenges of the 20th century.