Pub. Info. – “The Surrogacy Bill 2016 needs complete overhaul to safeguard interests of stakeholders”, Sunday, September 4, 2016, India Medical Times, http://www.indiamedicaltimes.com/2016/09/04/opinion-the-surrogacy-bill-2016-needs-complete-overhaul-to-safeguard-interests-of-stakeholders/
The Surrogacy ( Regulation) Bill 2016 drafted by a specialized Group of Ministers including Union health Minister has received cabinet approval on 24th August 2016 following a declaration by the government to be tabled in the upcoming winter session of parliament for early enactment of legislation on surrogacy in India. The Surrogacy Bill 2016 lays down novel permissible dos and donts or legalities and illegalities for commissioning surrogacy in India. This Bill comes after a decade long legislative process of formulation of legislation on surrogacy which saw series of draft Bill titled as the Assisted Reproductive Technologies Bill (ART) 2008 seeking to regulate surrogacy had undergone periodic revision and necessary changes in the year 2010 then lately in the year 2014. It may be noted that new Bill marks specific distinction from its previous counterparts in terms of objectives, policy directives as well as the proposed provisions hence an appropriate understanding on the same its implication is necessary.
Background & Objective, Scope of Surrogacy Bill – Narrow Restricted to Surrogates mother exploitation Only –
This Surrogacy Bill 2016 begins in the background of a narrow conceptualization of surrogacy which is confined to only “exploitative plight surrogate mother”, accordingly the main objective of this Surrogacy Bill is “to control exploitation of poor Indian surrogate mothers” to the exclusion of any others concerns. The Bill in its enthusiastic drive to control exploitation of surrogate mothers has made a glaring over sight on the other crucial stakeholder to the infertile individuals who are facing medical ailments and necessitate such treatment. Besides, the nature and scope of this surrogacy bill is also limited to regulation of surrogacy to the exclusion of related ART treatments and matter related there to.
Where as the predecessor Bill , The ART Bill emerged in background of rising infertility in India and worldwide as a health menace, took into consideration the existing constitutional legal right to family formation, procreation, the social cultural context of India where child begetting is paramount accordingly provided for surrogacy as an Assisted reproductive technology, a form of infertility treatment involving the medical procedure of IVF along with donation handling of gametes, embryos , use of third parties in procreation as gametes donors, gestational carriers surrogate mothers . The ART Bill under its objective provided for comprehensive regulation of surrogacy along with all a range of ART and related ancillary subject matters to control misuse of technology as well as to provide for rights of the concerned stakeholders in the same.
Altruistic Surrogacy – Limiting Monetary Payment to surrogate mother & Well being for surrogate mother –
This Bill 2016 sets forth unprecedented legal development in Surrogacy as this propose for the first time ever “altruistic surrogacy” in India by with limiting monetary payment to surrogate mother for medical expenses related to surrogate pregnancy only nothing over and above the same. Under the earlier draft ART Bill commercial surrogacy had been permitted with payment to surrogate mother for agreeing to act as surrogate mother in addition to the cost of pregnancy, along with payment for successive embryo transfer for surrogate mother was permitted but the surrogacy bill 2016 allows only medical expenses related to surrogate pregnancy to be paid to surrogate mother.
Taking after the global experiences of altruistic surrogacy regime in foreign nations, It may be noted that many nations which legalize altruistic surrogacy permit a range of monetary payment to surrogate mother as “reasonable compensation” including Legal counselling fees, psychological counselling, Health screening, Child support or crèche fees psychiatric and living expenses Nutritional dietary intake, maternity clothing and such necessary expenses among others for safeguarding the health , well being of surrogate mother and at the same time other allow flexibilities in payment. This is true in case of UK under Human Fertilisation and Embryology Act 2008 HEFA 2008, New South Wales Australia Surrogacy Act 2010, Canada Assisted Human Reproduction Act 2004 , all these provide for such monetary payments as reasonable compensation under their altruistic surrogacy regime. As the underlying objective is to ensure maximum welfare , safeguards for surrogate mother on the contrary the Surrogacy bill 2016 emphasizes on the rigid payment control by government over and above the central concern of safeguarding of surrogate mother ,
The government ought to see if this arrangement particularly under the present socio economic context, considering the status and plight of women in India dwell well with the concerns of the surrogate mothers! On the other side the actual testimonies of surrogate mother beg to differ from government approach who are opposing altruistic surrogacy and sought to contest it before the court. These women are the actual direct stakeholders whose concerns voices needs to considered by the government. This present arrangement will only render the surrogacy arrangement unworkable and reduce the scope and chances for availing surrogacy for such medically needy couples.
Prohibition on Commercial Surrogacy & Penal Sanctions – Imprisonment for overseas commercial surrogacy –
The Bill 2016 imposes complete prohibition on commercial surrogacy in addition this the Bill provides for stringent punishment including imprisonment for ten years for breach of the provision of Bill, inferring from the combined reading of these provisions, it appears that both offer of payment by couple to surrogate mother and receiving of payment by surrogate mother both are punishable with imprisonment, fine under this Bill. Another issue in connection with the prohibition on commercial surrogacy is the effect of such prohibition on such Indian couples who commission commercial surrogacy overseas if they are liable to similar penal sanctions of being imprisoned for the same!
Lurking Possibilities of Underground Black Market surrogacy – Greater exploitation of surrogate mothers–
Under such regressive prohibitions on commercial surrogacy and strict altruistic surrogacy, there is greater possibility of surrogacy being pushed secretively underground. As per the likes of China where surrogacy is illegal yet it is openly reported in the media that there is “the Booming Underground Market in Surrogate Motherhood in China” involving abduction, inter country transportation of these women to be surrogate mothers for monetary returns into other foreign nations. These women are subject to worst forms of health exploitations including excessive hormonal over dosages, multiple embryo implants leading to multiple pregnancies , successive foetal reductions or abortion and even death in many cases, and since the entire arrangement is conducted away from government control these women are left without any recourse or remedy , these women are further victimized. [ China Experiences a Booming Underground Market in Surrogate Motherhood, 2, 2014, NewYork Times].
Permitted & Prohibited to commission surrogacy & Discriminatory riders & arbitrary exclusion –
Commencing from the earliest of the ART Bill the permissibly of stakeholders has undergone both drastic, periodic revisions. While the ART Bill 2008, 2010 stated expressly “assisted reproductive technology shall be available to all persons including single persons, married couples and unmarried couples”. The ART Bill 2014 prohibited all foreigners to commission surrogacy in India but at the same time permitted Overseas Citizen of India (OCIs), People of Indian Origin (PIOs), Non Resident Indians (NRIs) and foreigner married to an Indian citizen.
This surrogacy bill incorporates the discriminatory riders or criterions as nationality, residence, sexual orientation, and marital status in order to determine the status of couples who may be permitted to commission surrogacy in India. Accordingly the Surrogacy Bill permits only “heterosexually married Indian couples” to commission surrogacy in India banning all foreigners, Overseas Citizen of India (OCIs), People of Indian Origin (PIOs), Non Resident Indians (NRIs) and foreigner married to an Indian citizen. Additionally, the Bill 2016 also excludes live in relation partners, singles, same sex individuals either of Indian or foreign nationality or residence from commission surrogacy in India.
This outright and wide spread prohibition, prima facie appears discriminatory and arbitrary considering the privation of basic inherent human rights including right to health particularly right to reproductive health, right to reproductive rights as right to reproductive or procreative choice of means of conception, right to access medical technology, right to family formation, right to privacy which are core constituents of the most primitive fundamental right namely right to life personal liberty of an individual guaranteed to all human being irrespective of nationality residence without any qualifying criteria or riders, for the same reason rights are held on a higher pedestal than other rights and recognised as international human rights under international human right conventions Universal Declaration of Human Rights 1948 , International Covenant on Economic, Social and Cultural Rights 1966, International Covenant on Economic, Social and Cultural Rights 1966, UN Convention on the Elimination of All Forms of Discrimination 1979, also guaranteed as facet of right to life personal liberty under Article 21 of Indian constitution similarly upheld under landmark Indian and foreign case laws. Hence abridgment or impairment or privation of such fundamental cardinal rights of concerned stakeholder appears unreasoned arbitrary without adequate justified reasoned grounds. One of the prime reason contended by the Government for such ban is to control, curb exploitation of poor Indian surrogate mothers. But this argument is defeated in the light recently reported RTI response form the ICMR, the nodal agency under Ministry of health family welfare government’s regulating ART in India which expressly state that “The ICMR has not received any complaint from surrogates about their exploitation by doctors and others”. [ No complaint received about surrogate exploitation’ [TNN | Aug 27, 2016]
Along with this the Government has time again emphasized on the lack of authentic records on the total number of women registering as surrogate mother for Indian foreigner annually in India , the number of IVF clinics, the total number of children born in India annually or leaving abroad , among others. [Mainstream Weekly , No Record of Surrogate Mother and Child at Regional and National , Vol LII, No 15, April 5, 2014] Under such circumstances the prohibitions under this Bill 2016 appears flawed and grossly arbitrary.
Recovery of Embryo, Gametes of Foreign couples from India clinics – no recourse –
This blanket ban on foreigners on availing surrogacy falls short of addressing the plight of such foreign couples or individuals who have their embryos or gametes lying frozen in Indian clinics, there is no recourse provided for such recovery, retrieval of the same. There are many such foreign couples who are facing extreme hardship, running pillar to post seeking to recover the same. It is pertinent to note that any such handling or discarding of such inherent biological materials of concerned individuals and couples without their prior consent or consultation of the concerned individuals and couples are constitute violation of biomedical ethical tents as dignity, integrity personhood , reproductive autonomy of an individual which has a direct bearing on the right to life of an individual.
Prohibition on Singles – Prohibition Widow & Divorcee for surorgacy –
While the Bill imposed prohibition on singles to commission surrogacy this left unresolved issue concerning case of widow, divorcee who are also single following death desertion, or divorce as well as taking after the rising number of/ large number of singles by choice who are all allowed to adopt but denied surrogacy.
Preconditions to access surrogacy Or State imposed impediments in accessing surrogacy-
The surrogacy Bill 2016 stipulates a range of regressive preconditions to be complied before commissioning surrogacy. The Bill allows “only the close relative of the couple” to act as surrogate mother for them. Whereas the earlier ART Bill directed the ART Banks to provided assistance to the couple in securing surrogate mother, gamete donors for them.
Shifting Burden From ART Bank onto Infertile couples to secure Surrogate –
This Bill shifts the onus from ART Banks onto the infertile couples who already suffering medical ailments, reeling under the frustration to find a close relatives of theirs who is willing to act as surrogate mother for them, this amounts to denial or privation of requisite necessary health services, assistance from state, As a welfare state the state has obligation to provide necessary health services this is upheld by a series of judicial precedents namely Parmanand Katra vs Union of India 1989, In CESC Ltd. vs. Subash Chandra Bose 1992 ,Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors, 1996 where in the Supreme Court held that right to health and medical care is a fundamental right covered by Article 21 read with Articles 39(e), 41 and 43 of Indian constitution and that the state has an obligation under Article 21 to safeguard to provide necessary medical aid the same. This is also supported by the National health Policy 2016 which emphasizes on universal health care, access, right to health as an assured entitlement of individual from the state.
In such cases where the couple may not find such close relative to act as surrogate mother, their chances of availing surrogacy is thereby curtailed. This provision in itself curbs such procreative or reproductive choice of couples.
Limited Availability of Surrogate mother – only Close Relative No others –
It may be noted that The ART Bill allowed relative, known, as well as unknown person to act as surrogate mother, The ART Bill further added a specification that “in the case of a relative acting as a surrogate, the relative should belong to the same generation as the women desiring the surrogate”. Thus the earlier provisions of ART bill provided for greater scope for securing surrogate mother including both the institutionalized mechanism of ART Bank as well as the family relative options. Thus ensuring better access in availing surrogate mother but this Bill 2016 only reduces the possibility of finding surrogate mother and evades state responsibility to provide necessary assistance to the couple and makes the couple solely reliable for any such failure.
Unavailability & Unfit Close relative to be Surrogates – Family history of Genetic Diseases –
A significant health issue associated with the close relative to act as surrogate mother is the risk of passing on congenital or genetic diseases on to the child in such cases where the family has such genetic history, thus in those condition, the close relative of couple may not fit or may not be in the appropriate health condition to be surrogate mother.
It may be pertinent to mention that proposition of close relative surrogate mother is fraught with several disruptive issues. Since the surrogate other is a close relative of the couple hence there could be grater possibility of emotional attachment with the child considering the shared familial ties, ancestory, lineage leading to refusal or family disputes disagreements in handing over custody of surrogate. Besides a close relative acting as surrogate mother may affect inter personal relationships, within the family which in turn may affect the pyscho social well being of child.
Subsistence of marriage for five years – State directed stage of attainment of pregnancy or parenthood –
The surrogacy bill allows “only such heterosexually married Indian couples whose marriage have subsisted for five years” to commission surrogacy thus in other words the Bill determines the stage of procreation or attainment of parenthood to be five following a legal wedlock , this provision prima facie appears as the most blatant breach of reproductive, procreative rights, privacy , right of couple as the decision regarding the stage of attainment of parenthood or pregnancy is the subject matter of an individual’s personal reproductive choice or freedom as granted under international human right convention International Conference on Population and Development (ICPD), Cairo 1994, The UN Convention on the Elimination of All Forms of Discrimination 1979, and tehse are also recognised as the facet of right to family formation privacy of individual shielded from state interference as upheld in series of 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 .
State enforced delayed or deferred parenthood – Subsistence of marriage for five years –
This condition of subsistence of five years indirectly seeks to impose a deferred or delayed payment on couples who may wish to have a child early on in their life as in the first years or marriage or at such time the couple deems fit for attainment of parenthood. In compliance with this condition of subsistence of five years in the present context of delayed marriages where couples marry only in their late thirties or forties may render /impair the viability of their gametes and thus impair on their procreative choice
Childlessness – Or One Child Policy Norm –
The Surrogacy bill 2016 bars such couples who already a child including adopted children from commissioning surrogacy thus the government in disguised form seeks to enforce one child policy norm as per the like of china , though even China has repealed the same. This is another serious and arbitrary state intervention in the realm of individual’s reproductive rights and privacy rights.
Certificate of Infertility – Approval on case to case basis by state authorities – further impediments –
The Surrogacy bill 2016 issues directive to the couple to furnish a “certificate of medical unfitness” in either of the couple before commissioning surrogacy. However it remains ambiguous if this certification is to be granted only after the satisfaction of concerned authorities set up under the Bill on case to case basis or if such certification refers to submission of requisite medical test to demonstrate the same, in the case of former such certification or approval by the authorities may cause further complications and impediment in availing reproductive or procreative right of couple.
Exclusion of Medically needy couples – Privation of reproductive rights –
The bill while laying down these rigid preconditions omits to consider such medically needy couples for whom surrogacy is the only option for child bearing as women with no uterus or such condition, for them these preconditions including five years among others would only worsen their condition further deprive, deny them their reproductive rights.
Rigid criteria’s – State limiting choice or means of conception –
The Bill by laying down such rigid arbitrary compliances limits the / such choice or means of procreation including surrogacy which ensures genetic connection with either or both couple. Thus the bill in more ways than one takes away or abridges the reproductive or procreative choice , right to privacy family formation of couples through coercive state directed legislation.
In contrast to these arbitrary unreasoned preconditions, the earlier ART Bill only provided for minimum age stipulation to be twenty one which was revised to be twenty three years subsequently secondly the ART Bill prescribed for medical tests for a couple to demonstrate the medical need for such treatment or surrogacy along with necessary prior counselling on the implications of treatment hence the access to surrogacy had been made less complicated.
Mandatory Insurance for surrogate mother – barely two months post delivery inadequate cover –
Through the earlier draft ART Bill also provided for insurance , This bill 2016 provides for mandatory health insurance coverage for surrogate mother throughout the pregnancy and till two months after the delivery. This allows for only two months post delivery cover which appears inadequate considering the long term health risks arising out of subrogate pregnancy. However, It may be rightful to reiterate the relevant provision of ART Bill 2014 which provided for better insurance safeguard for the surrogate mother to cover any complications that have arisen during pregnancy which are likely to continue for the rest of her life to be covered appropriately under insurance. In addition to the above mentioned the Bill has many other gaps and limitations.
Ending Remarks –
This Bill is alarming for series of human right concerns it raises, while the bill has many regressive and discriminatory provisions it seeks to raise unnecessary impediments from commissioning surrogacy and even imposes criminal provisions for the same. The Bill is replete with contesting legal issues. The Bill needs a complete reworking in line with the existing legal rights, international convention towards better safeguard of interest of all stakeholders.