Published: August 28th 2016
Written By : Ronak Pol
Surrogacy (Regulation) bill was passed by the Union Cabinet(23rd August) to be introduced in the next session of parliament and though it does not stand to affect most of us directly it will surely take its toal on the $400 million industry.
To debate whether or not surrogacy affects our ethos, we need to first understand the merits of this bill and understand who stands to be affected by it.
The need for Surrogacy (Regulation) Bill 2016
Surrogacy in India was legalised in 2002 but the debate about the need for a reform began in 2008, when a two-week-old infant was left stateless by the commissioning parents and the biological mother refused to accept the baby.
As the Centre for Social Research, New Delhi reports “certain guidelines were in place prior to the passing of the Bill, what lacked was a strong legal mechanism to deal with the rights of the surrogate mother. In the absence of such a law, surrogacy turned into a commercial business. This commercialization of surrogacy led to a black market and baby-selling, breeding farms, turning impoverished women into baby producers and the possibility of selective breeding at a price”.
So how does this bill address these issues?
Bans commercial surrogacy
Surrogacy is classified into 2 types Altruistic surrogacy where in no charges, expenses, fees, remuneration or monetary incentive of whatever nature are given, except the medical expenses & commercial surrogacy which includes selling or buying of human embryo by way of giving monetary incentive in cash or kind to the surrogate mother or her dependents.
The bill completely bans commercial surrogacy, with no exceptions, while brings restrictions on altruistic surrogacy.
Reason for this ban.
The motive behind this bill is to bring more transparency to the entire process of surrogacy, prevent exploitation of women (especially from tribal areas) and to give a well-defined legal standing to a surrogate child.
India was one of the few nations that allowed for commercialised surrogacy making it the center of these services.In India it costs 1/3d of what it does to rent a womb back in the states hence attracting a lot of foreigners.
The motive behind this bill is to bring more transparency.
Who can and can’t opt for surrogacy ?
An Indian heterosexual couple with proven infertility(need a medical certificate) and married for over 5 years can opt for altruistic surrogacy, if you don’t fit in even one of these categories; surrogacy is a distant dream for you. Oh! and one more thing – the individual who has willfully agreed to bear your child needs to be a close relative.
The 1st restriction came in 2012 when the ban was placed on single parents & gay couples of foreign origin. Heterosexual couples who had been married for less than 2 years were also restricted from using these services. The new rule completely bans surrogation in any form for foreign residents including overseas Indians (OCI & NRI).
Gay couples, single parents, or individuals in a live-in relation are not allowed to opt for these services. Indian politicians also had some strong words to say about the same.
The homophobic debate
This is something that finds its way into any political debate in India – and rightly so! We cannot deny that India needs to come up with a clear progressive reform on section 377 and find a more inclusive way of addressing the issues of LGBT community.
Ms.Sushma Swaraj(External Affairs minister)said that gay couples having surrogate babies “doesn’t go with our ethos” which clearly indicates the need to address the issue of homophobia.
India needs to come up with an inclusive way of treating its LGBT community.
Not an option if you already have a child.
If you already have a child (biological or adopted) you can not opt for having another surrogate child also the same individual cannot be approached for surrogacy twice.
Surrogation vs Adoption.
This bill is in line with the Government’s efforts to encourage adoption, some might even feel that adoption can be an equivalent option for individuals who will be restricted by this new bill.Though please note that adoption was still an option for individuals who are opting for surrogacy at present, meaning that the two are clearly not substitutes.
Undergoing surrogation is a planned life decision and needs to be treated with respect.
First of all I would like to appreciate the efforts taken by the government to draft this bill and address the issue in a formal and transparent way – This bill is crucial to curb exploitation and give the child a defined legal standing.
About the ban on gay couples and individuals in a live-in relation from having a surrogate child, I hope that our Foreign Affairs minister develops a more global and inclusive view on her statements and also that we can one day come to a point where no separate legally oppressive provisions put for the LGBT community and that we can find a place for them in our broadened ethos.
The provision to not allow a single parent to have a surrogate child needs to be seriously reviewed and if kept needs to be explained with a clear rational.
The reason for selecting a 5 year timeline before a heterosexual couple with proven infertility can apply for surrogacy should also be explained more clearly and if unable to be justified should be reduced.
There needs to be a clear definition of close relative who will be allowed to have a surrogate child. Also the bill needs to address the grievances of those who might not have any close relative who is willing to undergo the procedure but have a friend who is willing to do the same.
Also note that surrogation and exploiting women for surrogation are not synonyms, we can definitely put in a better equipped monitring system to make sure that no one is exploited while making surrogation legal for a wider populous (both local and international).
This bill is crucial to curb exploitation and give the child a defined legal standing.
Formalising terms for giving licences to clinics who carry out these services and also cancelling licences of hospitals found of doing illegal underhanded dealing should be the first steps taken by the government.
Finding a mechanism for fair pay and adequate medical attention to women who undergo the procedure would also be a more progressive step in the right direction.
I hope the government can redraft this bill to be more inclusive and less restrictive.
What do you think?? Comment below!!
- What are some changes that you would include in this bill?
- What are your views on Ms.Swaraj View of LGBT community
Please comment below and we can take this discussion forward!