Highlights and brief analysis of the Surrogacy (Regulation) Bill, 2020 and suggested potential safeguards
Malhotra & Malhotra Associates, Chandigarh
The Surrogacy (Regulation) Bill, 2020(Surrogacy Bill) is an ethical, moral and social piece of legislation which protects both exploitation of the surrogate mother and the rights of a child born through surrogacy. One of the Bill’s most noticeable features is that it has continued the ban on commercial surrogacy.
The Bill predominantly proposes to allow/limit altruistic ethical surrogacy to intending infertile Indian married couples only between the ages of 23-50 for women, and 26-55 for men. Couples should be citizens of India, or non-resident Indians, persons of Indian origin or overseas citizens of India.
There are, however caveats for a couple of Indian origin opting for surrogacy arrangements. They cannot have a surviving child, either biological or adopted, except when they have a child with a mental or physical disability, or who suffers from a life-threatening disorder with no permanent cure. This unfortunate position must be confirmed by the appropriate authority with a due medical certificate from a District Medical Board.
Clause 4 (ii)(a) of Chapter III relating to Regulation of Surrogacy and Surrogacy Procedures of the 2020 Bill, and some of the relevant clauses at pages 43-45 mandate as follows:
‘4.(ii) No surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:–
(a) when an intending couple has a medical indication necessitating gestational surrogacy:
Provided that a couple of Indian origin or an intending women who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.
Explanation – For the purposes of this sub-clause and item (I) of sub-clause (a) of clause (iii), the expression ‘gestational surrogacy’ means a practice whereby a surrogate mother carries a child for the intending couple through implantation of embryo in her womb and the child is not genetically related to the surrogate mother;
(b) when it is only for altruistic surrogacy purposes;
(c) When it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures;
(iii) (I) a certificate of a medical indication in favour of either or both members of the intending couple or intending womannecessitating gestational surrogacy from a District Medical Board.
(III) an insurance coverage of such amount and in such manner as may be prescribed in favour of the surrogate mother for a period of thirty-six months covering postpartum delivery complication from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999;
Provided that the intending couple or the intending woman [defined explicitly in Section 4 (1) of the 2020 Bill at page 44 of the said report] shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother;
(b)(III) no woman shall act as a surrogate mother by providing her own gametes;
(IV) no woman shall act as a surrogate mother more than once in her lifetime.’
The fact of the matter is that surrogacy has huge profound psychological implications. Brandishing ‘a medical indication certificate’, can be very stigmatic and completely violates privacy. It can well be justifiably argued that the respective rights of privacy of the respective parties to surrogacy arrangements will stand violated, certainly both for the commissioning parent and the surrogate mother as well in the event of disclosure to other non-agreedthird parties, especially statutory authorities, and friends and acquaintances of the parties.
Reference in this regard is made to the recent celebrated judgment handed down by the Hon’ble Supreme Court of India in K S Puttaswamy v Union of India (2017) 10 SCC 1. It should also be borne in mind that the requirement is as such more than stigmatic. Both the parties may well encounter administrative obstructions/bureaucratic hurdles from the board and any potential delay in the decision making process, will add to the parties’ misery. The administrative hierarchy in invoking the jurisdiction of the Board cannot possibly ensure a high degree of sensitivity in the entire process. In relating to this aspect of the matter the parties are likely to be confronted with typical belligerent administrative apathy at the hands of the Board.
The opening portion para 4.18 at page 24 of the above mentioned report compares as follows:
‘4.18 Clause2(p) read with Clauses 2(r), 4(ii)(a) & 4(iii)(a)(I) provide the eligibility criteria for availing surrogacy procedure. A number of Members raised objections to the definition of the term “infertility,” as the inability to conceive after 5 years of unprotected coitus on ground that it was too long a period for a couple to wait for child...’
‘…Some members took umbrage to the Clause 4(iii)(a)(I) which provides for obtaining a certificate of infertility from a District Medical Board on the ground that why should such a certificate be required at all as it is quite offending and insulting. They were of the view that these Clauses need to be revisited.’
The penultimate observations of the Committee at page 25 of the report concluded:
‘4.21 In view of the above, the Committee recommends that while Clause 2(p) may be deleted and after this, the clauses may accordingly be renumbered/rearranged.’
Certainly, this is a shocking interpretation: socially and culturally more than insensitive as the previous phrase ‘infertility’, as used in the 2019 Bill is now substituted with harsh terminology ‘a medical indication’, which at first glance includes more sweeping medical conditions in addition to infertility, still very much retaining the stigmatic labelling for both parties to a surrogacy arrangement. It could also be argued that the distinction remains blurred. Rather, there is no paradigm shift in relating to this aspect of the legislative process.
By virtue of the provisions of the 2020 Surrogacy Bill all single/unmarried persons have been automatically excluded for commissioning surrogacy arrangements. Likewise, people in unmarried ‘line-in’ relationships also stand excluded, while on the other hand unmarried couples find statutory recognition under the provisions of India’s Domestic Violence Act, 2005.
Single woman cannot opt for surrogacy arrangements, but exceptions have been carved out for widows and divorcees. The 2020 Surrogacy Bill also provides that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent.
The Select Parliamentary Committee which met on 21 January 2020 after taking on board severe criticism of the earlier provision of confining surrogates to ‘close relatives only’, as envisaged in the Surrogacy (Regulation) Bill, 2019; recommended that the ‘close relatives’ clause should be removed, and any ‘willing’ woman should be allowed to become a surrogate mother provided all other requirements are met and that the appropriate authority has cleared the surrogacy. The Committee Report has not however recommended expanding the definition of commissioning parent to include single persons, either men or women.
Following the compilation of the 2020 Surrogacy Bill, central government has shifted the spotlight onto the regulation of other forms of assisted reproductive technologies with the Union Cabinet approving related legislation. The Draft Assisted Reproductive Technology Bill, 2020, seeks to establish a National Advisory Board, State Advisory Boards and a national registry for accreditations, regulation and supervision of all assisted reproductive technology clinics and assisted reproductive technology banks.
After a reading of the Report of the Selection Committee on The Surrogacy (Regulation) Bill, 2019 Presented to the Rajya Sabha on 5 February 2020, it emerges that despite such enormous efforts and deliberations there are still many suggestions to be advanced and incorporated to produce meaningful beneficial legislation bereft of practical shortcomings.
Bhupender Yadav, ‘The new surrogacy bill protects the interests of all’, Hindustan Times, 6 February 2020, available at: https://www.hindustantimes.com/analysis/the-new-surrogacy-bill-protects-the-interests-of-all/story-F4DJy6L5QsfYk57npKVB3H.html, last accessed 11 June 2020.
Clauses 4.54 and 4.55 at page 31 of the Report of the Select Committee on the Surrogacy (Regulation) Bill, 2019 presented to the Rajya Sabha on 5 February 2020, available at: https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf, last accessed 11 June 2020.
For further detail see: Aditi Tandon, ‘After surrogacy, Cabinet clears Bill to regulate IVF’, 19 February 2020, The Tribune India, https://www.tribuneindia.com/news/nation/after-surrogacy-cabinet-clears-bill-to-regulate-ivf-44199; and Editorial, ‘ART of life: On Assisted Reproductive Technology Regulation Bill’, The Hindu, 21 February 2020, https://www.thehindu.com/opinion/editorial/art-of-life-on-assisted-reproductive-technology-regulation-bill/article30873613.ece.