Critical Analysis of The Surrogacy Regulation (2019) Bill of India

Introduction:

The Merriam-Webster Dictionary defines surrogacy as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby to give it to someone who cannot have children.

Types of Surrogacy

• Traditional Surrogacy 

In this form, the sperm of the biological or intended father is artificially inseminated into the womb of the surrogate mother. The baby born is genetically related to the surrogate mother and donor father (of the sperm). 

• Gestational Surrogacy

In this, the fusion of the embryo takes place outside the womb, in a laboratory, and then placed in the body of the surrogate mother. No relation is formed between the surrogate mother and the baby. 

The Surrogacy Regulation Bill, 2019

Surrogacy in India has been a complicated process. Before the introduction of the 2019 bill in the Lok Sabha, commercial surrogacy was legal. This type involves monetary compensation to the surrogate mother excluding costs of medical bills and insurance coverage. 

Commercial surrogacy exploits women through illegal selling or buying of the embryo or abandonment of the baby born by the intended parents if found to have inborn defects. Many times, the surrogate mother is forced into the ‘rent a womb’ business by family members due to financial conditions without her consent. The commercialization of the process leads to foreign couples choosing surrogates from India due to the low cost and fewer restrictions. This in turn bridges more gaps between the haves and the have-nots. 

Other than being practiced in India, commercial surrogacy is allowed in some states of the US countries as Russia and Ukraine. It is banned in most of the European countries like France, Germany, Italy, Spain, Portugal, and Bulgaria while few allow only altruistic surrogacy.^[1] (Cheung, 2014)

The bill provides for the following conditions under Section (4) (ii):

1. It allows only altruistic surrogacy and the intending couple must be suffering from an infertility issue proven through medical reports. 
2. The children born out of surrogacy must not be subjected to any sort of exploitation, prostitution, or sale to other persons.

Section (4) (iii) provides that the intending couple must produce a Certificate of essentiality and Certificate of proven infertility.

One of the most important provisions of the act was that the intended couple must be of Indian nationality and the age of the woman is restricted between 23 to 50 years and for the husband, it is between 26 to 55 years. The couple must be married for a minimum of 5 years. 

The surrogate mother can withdraw from the contract only before the implantation of the embryo in the womb. Therefore, she will have the right to abort the child only with the permission of the appropriate authority. Once the child is born and the surrogacy procedure is complete, the intending couple will be considered to be the biological parents of the child.

The penalty for offenses like undertaking or advertising commercial surrogacy; exploiting the surrogate mother; abandoning, exploiting, or disowning the surrogate child; and use of human embryos or gametes for commercial purposes is imprisonment up to 10 years and a fine of up to 10 lakh rupees. The Bill specifies a range of offenses and penalties for other contraventions of the provisions of the Bill.^[2] (THE SURROGACY (REGULATION) BILL, 2019)

Criticism of the Bill

There have been many negatives raised in the bill by feminists, scholars, and diplomats alike. 

1. Article 14 of the Constitution which defines and states equality before the law and equal protection of the law has been infringed. The right of the woman to choose surrogacy or not has been outlawed due to the clause in the act which states specific eligibility of the woman (being a relative or a close person) which is also vague.^[3] (The Surrogacy (Regulation) Bill, 2019)
2. Although the bill specifies that the intending parents will be considered as biological parents of the child, written consent of the surrogate mother needs to be obtained for abortion. This leaves no consent on the part of the parents and they cannot know the medical condition of the child (abnormalities or disabilities as such if any).
3. Women, especially, in rural India bear the financial burdens due to the lack of earnings by the male member of the family. They are the main participants to earn money through childbirth. Legalizing altruistic surrogacy and completely banning the commerciality leads to a black market of these services and the main victim – the surrogate mother is prone to excessive exploitation as a result. 
4. Childbirth is a celebrated incident in India. Ethical and legal issues arise when the artificial procedure of childbirth like surrogacy is discussed. Couples who cannot conceive naturally or gay couples who want kids opt for this method. But due to the provision of ‘only married couple’ in the bill, again, personal rights are violated. Even though Article 377 of the IPC has been struck down, no law has been made regarding same-sex marriages in India which makes it more difficult for the LGBTQ community to have kids using surrogacy.  
5. The bill fails to recognize the right and will of a woman at which age she needs to get married. This may include failed marriages or divorcees or even late marriages. 

Religion and Surrogacy 

Surrogacy has been an ancient practice in India. In Mahabharata, this form of childbirth was used on Gandhari, wife of Dhritarashtra. IVF (In vitro fertilization) was the procedure done after a mass of flesh was conceived by Gandhari after nearly two years of pregnancy. There are many such examples in the great epic relating to Surrogacy. The births of Draupadi and Drishtadyumna, Drona are other cases of IVF and parthenogenesis. 

The tale of God Krishna also refers to embryo transfer according to Hindu belief. It has taken place to prevent the baby from being killed by his uncle Kamsa and transferred to the womb of the first wife of Krishna’s father.

Surrogacy is preferred above adoption due to social, ancestral beliefs and obsession of ‘own blood’ succession line. 

In other religions like Islam, surrogacy is treated as ‘Haraam’ or an act that is forbidden. It is considered immoral and illegal to implant the embryo in another woman’s womb or combines the ovum of a woman with the sperm of a man other than her husband.^[4] (Ansari, 2011)

The religion of Christianity also believes similarly. In some forms of Christianity, the Church advocates that conception is a natural process by God and doesn’t need interference while other forms allow for artificial insemination under the belief that donation is a compassionate act to help a fellow human being. 

This article aims to explain the legal provisions of Surrogacy in India and criticize the positives and negatives of the ‘Surrogacy Regulation Bill in India. 

Case of Surrogacy 

In the case of BABY MANJI YAMADA V. UNION OF INDIA (UOI), it was noted that “in the name of surrogation lot of irregularities are being committed….in the name of surrogacy a money-making racket is being perpetuated…[and]…. that the Union of India should enforce stringent laws relating to surrogacy.”^[5] (Pasayat) The baby was born when there were no laws of surrogacy in India.

At the time of the decision of Baby Manji, the fertility clinics were bound by the 2006 guidelines of the Indian Council of Bio-medical Research (hereinafter ICMR Guidelines) which validated surrogacy contracts. However, it specifically considered surrogacy for infertile married couples and the reading of the guidelines proposes gestational surrogacy with the baby required to be genetically related to the intending parent and mandating them to adopt the baby within six weeks of birth. Thus, the Guidelines aimed at preventing multiple parentages which could result in a situation when there were donors of either of the gametes and also gestational surrogacy. However, in practice, gestational surrogacy with non-genetic gametes was also carried out by the clinics.^[6] (THAPA)

These infertility clinics are not official in absence of the law and matters like the breach of contract, non-payment is ignored due to the lack of a recognized board or committee.

In the case of R. Rajgopal v. State of Tamil Nadu, it is stated that the ‘right to life’ includes ‘right to privacy’. An individual has the right to decide over matters such as family, marriage, procreation, motherhood, childbearing among other things.^[7] (Sehgal, 2020)

Conclusion

Surrogacy, as an option of childbirth, has many socio-psychological problems. The surrogate mother may go through a ride of emotions during pregnancy and gets emotionally attached to the baby which creates more problems for the couple due to the extent of authority given to the surrogate mother in the bill. And now, with the monetary pension removed, altruistic surrogacy mocks the consent of the woman because she is now and always has been a mere ‘baby-maker and a child a ‘commodity. But the bill also makes sure that by deeming the child born out of surrogacy, he/she is the rightful and lawful child of the commissioning parents and giving her/him the rights necessary for her/his growth and development. 

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References:

[1] Cheung, H. (2014, August 6). Surrogate babies: Where can you have them, and is it legal? Retrieved from https://www.bbc.com/news/world-28679020

[2] THE SURROGACY (REGULATION) BILL, 2019. (2019, August 8). Retrieved from http://164.100.47.5/committee_web/BillFile/Bill/70/137/156-C%20of%202019_2019_12_12.pdf

[3]The Surrogacy (Regulation) Bill, 2019. (n.d.). Retrieved from https://prsindia.org/billtrack/the-surrogacy-regulation-bill-2019

[4] Ansari, M. N. (2011, October 11). Surrogacy in the mirror of Hinduism and Islam. Retrieved from http://twocircles.net/2011oct11/surrogacy_mirror_hinduism_and_islam.html

[5] Pasayat, A. (n.d.). Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008. Retrieved from https://indiankanoon.org/doc/854968/

[6] THAPA, J. D. (n.d.). THE ‘BABIES M’: THE RELEVANCE OF BABY MANJI YAMADA V. UNION OF INDIA (UOI) AND IN THE MATTER OF BABY “M”.

[7] Sehgal, D. R. (2020, March 27). A Critical Analysis of The Surrogacy (Regulation) Bill, 2019. Retrieved from https://blog.ipleaders.in/critical-analysis-surrogacy-regulation-bill-2019/