Weighing the Strength & Weakness Surrogacy Bill 2016 – Legal Issues

Pub. Info. -Prajawani Kannada News Paper, Pg. no. 7 http://epaper.prajavani.net/Home/index?Edition=151&Date=MTAvMDkvMjAxNg==&Page=194470

Introduction – The Surrogacy Bill comes after a decade long practice of surrogacy in India since the year 2002 followed with a series of Medical Guidelines, Assisted Reproductive Technologies ART Bill, taking a novel approach the Government initiated a separate bill titled as Surrogacy (Regulation) Bill 2016 specifically regulating surrogacy in India excluding ART and other concerns. The Cabinet approved the Surrogacy Bill 2016 as on 24th August 2016, scheduled to be placed before parliament during the winter session.

Proposed Provisions & Legal Issues –

It is significant to weigh the pros and cons of the relevant provisions of the Bill its legal implications and consequential impact on the legal status, safeguards or rights of concerned stakeholders,

Firstly the Bill provides for “altruistic surrogacy” by permitting “only medical expenses related to surrogate pregnancy to be paid to surrogate mother”, nothing over and above. But this arrangement appears 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 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 bans commercial surrogacy thereby ban on “hiring of womb or womb renting business”. The Bill sets out stringent punishment including 10 years of imprisonment, fine for violation of provisions of the Bill.  Thus offer and receipt of payment by couple to surrogate mother may constitute punishable offense,  with imprisonment for both the couple and surrogate mother, however the Bill does not specify if an Indian commissions commercial surrogacy overseas would the concerned person be penalized with imprisonment,

In present socio economic context of India such ban may be practically not viable and this may give rise to a thriving underground black market involving trafficking abduction of women to be surrogate mother which will be causes greater exploitation of women,

The Bill imposes “out right ban on foreigners and OCI, PIO card holders , Non Resident Indians NRI also live-in partners and homosexual same sex partners to commission surrogacy”, this amounts to prohibition denial, discrimination on the ground of foreign nationality foreign residence, sexual orientation , marital status to commission surrogacy,  such differentiation and consequent denial in accessing medical technology treatment for better reproductive health or child bearing through surrogacy stands inconstant with right to health , family formation procreation privacy of these stakeholders.

The bill ban on singles, unmarried to commission surrogacy which is questionable as there are widows, divorcees who are also singles following divorce, death of spouse, also large number of singles by choice  who are allowed to adopt [under the Central Adoption Resource Agency Guidelines 2015 ] but denied surrogacy !

The Bill only permits a very narrow category of “heterosexually married Indian couples” only to commission surrogacy but imposes burdensome, arbitrary preconditions to be complied before commissioning surrogacy.

The Bill imposes the extra burden on couples who are already distressed facing infertility to find themselves “a surrogate mother among their close relatives”, under the earlier ART Bill regulations , the ART banks were required to assist the couples with surrogate mothers, thus in such cases where the couple may not find same, the couple may have to remain childless! Besides the close relative acting as a surrogate mother may give rise to greater likelihood or possibility of emotional attachment with the child and refusal to surrender the custody of child leading to family disputes.

The Bill permits “only such couples to commission surrogacy with five years of subsistence of marriage”, this provision prima facie appears as the gross violation of such basic human reproductive rights as the decision making including stage at which a legally married couple may attain parenthood or spacing between the children are reproductive or procreative right , facet of right to family formation personal liberty, right to privacy of couples protected from unnecessary state interference these rights areas core constituent of right to life personal liberty under Article 21 of Indian constitution , as interpreted, upheld under Kharak Singh vs. State of Uttar Pradesh 1963, Govind vs State Of Madhya Pradesh & Anr 1975, Raj Gopal versus State of Andhra Pradesh, 1994 and also 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.

Though the Bill emphasizes on surrogacy for medically needy couples, under these conditions, the Bill fails to take into consideration plight of such women who have lost their uterus or in such medical condition where surrogacy is the first and the last option or means to have child, for such women a waiting period of five years is unnecessary,  Further this wait period of five years causes a state imposed deferred or delayed attainment of parenthood.

The Bill also “prohibits surrogacy for such couples who already have a child including adopted child”, this provision indirectly  seeks to enforce one child policy for surrogacy like it used to be earlier in China. This is questionable as India does not have such policy, this also goes against the reproductive right, privacy family rights of couples.

Though there are some the progressive provision in the Bill yet there are limitations or gaps in the same.

The Bill permits “a women to be surrogate only once in their life time” but the Bill also ought to mention the requisite time gap following her last pregnancy or egg donation for better reproductive health of surrogate mother.

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 address or to recompense her loss of health , long or short term health risks arising therefrom.

The Bill imposes “stringent punishment on the couple for rejection of child post birth” on the ground of disability or defect but this should also include sex of child as a prohibited ground for rejection of child. This bill seeks to oversight the main concern of surrogate child which is breastfeeding, crucial for the early growth development health life of child.

At the outset law needs reconsideration and necessary revision in the greater welfare of safeguarding rights of all concerned stakeholders and for promotion of better reproductive health in society.



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