Pub. Info- Surrogacy Regulations Bill 2016 (Overview, Issues & Limitations), Flair Talk, October 2016, Vol. 3, Issue 8, ISSN No 23349 – 6649 Pg. No 16 – 19.
The Surrogacy Bill 2016 formulated by the Group of Ministers (GoM) including the Health Minister is approved by the cabinet and it is soon to be tabled before parliament. This bill marks a stark distinction from the earlier Assisted Reproductive Technologies (ART) Bill 2008, 2010, 2014 which sought to regulate a range of ART technologies including surrogacy, related bio medical procedures, misuses related to same. Whereas this new Bill 2016 seeks to specifically regulate surrogacy arrangements to the exclusion of ART technologies.
The objective of this Bill is to “legalize altruistic surrogacy and ban commercial overseas surrogacy” in India “to control exploitation of poor Indian women surrogates”, to check misuse of technology. But under such objective, the bill fails to take into consideration the plight of infertile couples, individuals who necessities this medical technology towards attainment of the most fundamental basic human, legal rights as right to family formation. Thus the Bill begins with narrow restricted view and lacks comprehensiveness.
First and foremost the bill legalizes “altruistic surrogacy” the following recommendation of Law Commission report no. 228 of the year 2009. Though the supreme court in the Baby Manji Yamanda case 2008yr. held commercial surrogacy legal in India leading to large scale practice of commercial surrogacy in India. But it is important to note that over the years this altruistic surrogacy taken after the experiences of foreign legal jurisdictions has failed to work even in those nations. Western Australia under the Surrogacy Act 2008 (WA) legalizes altruistic surrogacy but this has failed to work with reduced availability of surrogate mother driving Australians commissioning surrogacy overseas in large numbers. There is presently a proposal to legalize Commercial surrogacy in Western Australia. [Synday Morning Herald, May 14, 2015.] Similarly in NewYork, [NewYork Post,November 16, 2013], New Jersey USA [New Jersey Senate Bill 866,2014 session] is seeking to repeal the previous ban on commercial surrogacy initiating proposal to legalize compensated surrogacy. The UK family Courts through liberal judicial interpretations in series of cases Re L (A Minor)  Re X and Y (Children) , has time again allowed monetary payments by UK couples in excess of reasonable compensation under overseas commercial surrogacy arrangement despite breach of UK Human Embryology Fertilization Act 2008.
This Bill 2016 provides for “altruistic surrogacy” by permitting “only medical expenses related to surrogate pregnancy to be paid to surrogate mother”, nothing over and above. But in the typical socio economic context of India with bare minimal maternal or reproductive health services , high maternal mortality rate, nil social security measures, where in surrogate mothers who largely hail from socio economically disadvantageous background, this appears prima facie unfair, unjust to surrogate mother as the intending couple gets the baby, the intending mother gets paid maternity leave, the clinic gets fees but the surrogate mother who undergoes the entire pregnancy, labour pain, short or long term health risks including maternal mortality or death she is expected to practice charity or altruism while all the others gain, this is differential treatment of surrogate mother and this constitutes unjust benefit to others at the at the risk of surrogate mother. This is against the legal principles of equity or equal treatment, inappropriate distribution of benefits and burdens against distributive justice.
The Bill allows “only close family relative of couples to be surrogate” mother but this only increases the possibility of greater emotional attachment to the surrogate child considering same ancestry, familial or kinship ties thereby refusal to hand over the child, besides families with the medical history of genetic diseases, the close relative surrogate may not be medically fit condition to be surrogate for the risk of passing on the same disease onto the child. The earlier ART Bill allowed choice of both closer relatives, strangers to be surrogate mother and to seek assistance from ART bank to seek surrogate, this Bill limits the choice of surrogate and also curtails the procreative freedom of couples.
With altruistic surrogacy, there is greater likelihood of surrogacy being driven either secretly underground with abduction, confinement, illicit cross border movement of surrogate mothers. The instances of such thriving black market is evident from Nepal and china where from women are moved to Cambodia, Ukraine other nations to be surrogate for commercial gain. [NewYork Times, AUG. 2, 2014.] The Bill imposes complete prohibition on commercial surrogacy in India imposes stringent punishment including imprisonment for ten years, fine for violation of the provisions of the Bill. But the unresolved issue is, if an Indian couple commissions commercial surrogacy overseas, will such couples be imprisoned, will such surrogate children be denied entry, passport, citizenship, birth registration in India?
The Bill causes large scale exclusion prohibition of stakeholders including foreigners NRIs (Non-Resident Indians) or OCI (Overseas Citizen of India) card holders, PIO card holders, this clamping down on the foreigners is reasoned by the Government to control exploitation of poor Indian women surrogate mother But this reasoning is unsupported as there is no authentic data to establish the nexus between foreigners commissioning surrogacy in India causing exploitation of women in India or alternatively to establish surrogacy by Indian nationals does not causes any exploitation or any lesser degree of exploitation. there is no authoritative records on the total number of women registering as surrogate mother, their maternal mortality in case of Indian and foreign couples annually or, the total number of surrogate children born annually to Indian foreigners, this lack of statistics is further supported by RTIs responses from the concerned ministries which denied having any such record keeping on the number of surrogate mother and child annually in India” [Mainstream Weekly, April 2014] another RTI response from the Indian Council of Medical Research (ICMR) which stated that ” no complaint received from surrogates about their exploitation by doctors and others”. [TNN |Aug 27, 2016] Hence the reasoning for imposing such ban appears on weak footing.
Another immediate issues associated with the ban on foreigner is the issue of recovery of frozen gametes, embryos of foreigners from Indian clinics. Many couples, individuals are facing this issues. But there is no legal recourse remedial procedure provided for the same. [Wall Street Journal Nov. 16, 2015,] It may be noted that the ICMR Guidelines for Biomedical Research 2006 states “the concerned couples have right to ownership of embryos and the right to decision making or consultation on embryos”, therefore any handling, discarding of same without the consent of concerned individuals constitutes violation of biomedical ethics, reproductive autonomy, right to life , family formation of an individual.
The Bill 2016 permits “Indian heterosexually married couples” only to commission surrogacy, the identification of this criteria is extremely, narrow, discriminatory on the ground of marital status, sexual orientation, nationality. The Right to avail ART surrogacy pertains to right to access medical technologies, health care, services, which is a facet of right to life, personal liberty of an individual as interpreted under series of cases namely Parmanand Katra vs Union of India  ICESC Ltd. vs. Subash Chandra Bose , similarly rights as health, also right to family formation, privacy is also held as international human right under series of conventions namely Universal Declaration of Human Rights 1948, International Covenant on civil and political Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966. In access to such fundamental rights, imposition of such discriminatory riders is questionable for breach of equality, equal treatment, unjustified restraint on right to life of individual. In line with this argument, it is pertinent to reiterate the Vietnam’s amended Marriage and Family Law, (Decree No. 12/2003,) January 2015 called as the “humanitarian law” as it assists medically unfit for child bearing to have child through surrogacy ART thereby ensuring their human right to family formation, procreation. This Bill clearly exemplifies nexus between human right and surrogacy which needs to be emphasized under the Bill 2016.
In addition to these, the Bill lays down a range of prior conditions to be complied satisfied before commission surrogacy, The bill prescribes that “the couple may be permitted to commission surrogacy only after the subsistence of five years of wedlock” , this is grossly inconsistent with reproductive autonomy , procreative choice decision making of couples as the stage at which the couple decided to attain pregnancy or parenthood is solely the procreative or reproductive choice freedom of a couple, as granted under international human right convention International Conference on Population and Development (ICPD), Cairo 1994 and other convention and these decision making are also recognised as facet of right to family formation privacy , personal liberty of individual shielded from state interference as upheld in Indian case laws namely Kharak Singh v. State of Uttar Pradesh  Govind vs State Of Madhya Pradesh & Anr  Raj Gopal versus State of Andhra Pradesh .
The bill also denies such couples who already have children including adopted children to avail surrogacy. This provision in effect seeks to impose a one child policy norm like china this is questionable as India does not practice one child norm! This is another grave breach of reproductive or procreative right of couples.
The bill prohibits single unmarried individual to commission surrogacy in India, this is in sharp contrast with Central Adoption Resource Agency Guidelines 2015 which permits single unmarried male, female to adopt. In line with this, the status of those who are single following death of spouse as widow, divorcee right to commission surrogacy remains unaddressed! Similarly as singles, live in relations are also denied right to avail surrogacy even though live in relations are legal in India following the legal recognition of relations in nature of marriage under the Domestic Violence Act 2005 .
The Bill sweeps aside the sexual minorities either from Indian or overseas from availing surrogacy by imposing an outright ban. Though the legalization of same sex in India is awaiting judicial pronouncement. But this does not hold true in case of transgender who are granted the legal status of third gender and equated to the status of OBC by the apex court in NALSA Vs Union of India (2012yr) yet they are oversighted.
The Bill signifies on regulating and practice of “surrogacy for medical needy couples or for medical necessity only” but the Bill fails to take into consideration such medical conditions as women without uterus or such similar medical ailments where surrogacy is the only means to have a child genetically related to them. Under such conditions the prescribed conditions under the Bill including five years of subsistence of marriage, such other formalities serve no purpose rather only cause further breach , denial of their reproductive or procreative health.
Amongst all these contesting issues, a major unresolved issues is the establishment of legal parentage in couple. This Bill 2016 promises to ensure parentage of children born out of surrogacy is “legal and transparent.” But the parentage determination has been legally vexing issue. The ICMR Guidelines 2005 on ART and the earlier ART Bill 2008, 2010, 2014 also provided for vesting of parentage in the IP stating that “the child is presumed to be the legitimate child of the couple commissioning surrogacy and also provides for naming of IP in the birth certificate But this has met with legal complications due to inconsistency with the existing surrogacy laws, namely Indian Evidence Act [section 112] which vests motherhood with the birthing mother or surrogate mother, following irrebuttable legal presumption underlying the common law maxim “mater semper certa est” which states that motherhood is a fact based on conception, birthing within the valid wedlock thus legal right to motherhood is vested in the surrogate mother, Another inconsistency is with the Registration of Birth and Deaths Act, 1969 which provides for registration of the name of birthing mother as the natural parent, this issue was evident in the case of Jan Balaz vs Anand Municipality , 2009 yr., a German couple commissioned surrogacy resulting in birth of German surrogate child in India. The Surrogate child was issued certificate of birth with names of Indian surrogate mother as mother and the name of German intending, biological father as father, as per the provisions of Registration of Birth and Deaths Act, 1969. The Gujarat High Court held the gestational surrogate as one of the natural mother or natural parent following the legal presumption established under the Evidence Act and under the Birth Registration Act. Hence the parentage remains to be addressed better.
A grave concern under this altruistic surrogacy is the unenforceability of altruistic surrogacy agreement. It may be noted that under those legal jurisdictions where altruistic surrogacy is legalized the surrogacy agreement is held unenforceable, this is true in case of UK. Such altruistic surrogacy agreements as proposed under the Bill is not based on statutory force of contract law rather on the personal familial ties dependant on the personal relationship between the surrogate mother and the couple. In case of any disagreements between the parties to the surrogacy arrangement over refusal to comply with their promises or handing over of child there is no means to either hold the other party accountable no there is any legal recourse enforce such agreement before the court of law.
The Bill 2016 strictly provides against the refusal and abandonment of surrogate child by the intending couple on the ground of any health, physical handicap and imposes punishment including fine and imprisonment for the same. It may be noted this provision had been in the earlier ART Bill 2010 and 2014. But this ban is only partial as the bill omits to list the ground of gender, Taking advantage of this gap in Bill, in the recent past an Australian intending couple who had commissioned surrogacy in India left the girl surrogate child in India on the ground of her sex, and took the male surrogate child with them back to Australia. (hindustantimes October 09, 2014 )
This Bill provides for mandatory Insurance cover for surrogate mother throughout the pregnancy and till two months post delivery, but this barely two months period is inadequate to recompense her loss of health, long or short term health risks arising therefrom.
The Bill in the name of regulations seeks to largely imposes arbitrary bans, at the cost of being inconsistent with constitutional, statutory provisions with an oversight of the central concern of safeguarding the interest of stakeholders in the surrogacy agreement. The proposed Bill does not resolve the issues but only increases the same!