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The Surrogacy (Regulation) Bill 2016 Passed in Loksabha

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Written by kasadmin

THE SURROGACY (REGULATION) BILL 2016 PASSED IN LOK SABHA

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The surrogacy bill that was introduced in Lok Sabha in 2016 was passed on December 19, 2018. Read more about the bill here.

What is surrogacy?

Surrogacy is the practice whereby one woman carries the child for another with the intention that the child should be handed over after birth.

Wikipedia explains it as “Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to become pregnant, carry the pregnancy to due term, and give birth to a child or children, all of this for another person or persons, who are or will ultimately become the parent(s) of the newborn child or children.”

Why people seek surrogacy?

People may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks present an unacceptable danger to the mother’s health, or when a man alone or a male couple wishes to have a child.

What is Commercial and Altruistic Surrogacy?

In the agreement between couples and the surrogate mother, monetary compensation may or may not be involved. Receiving money for the arrangement is considered commercial surrogacy; receiving no compensation beyond reimbursement of reasonable expenses is altruistic surrogacy.

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Altruistic surrogacy involves an arrangement where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy. Commercial surrogacy includes compensation (in cash or kind) paid to the surrogate mother, which exceeds the reasonable medical expenses associated with the pregnancy. Commercial surrogacy is allowed only in Russia, Ukraine and California.

Surrogacy in India

Though commercial surrogacy is banned in many countries, it was legalized by Supreme Court in India in 2002. A United Nations study in July 2012 estimated that the surrogacy business at more than $400 million a year, with over 3,000 fertility clinics across India. A recent study estimates show that more than 25,000 children are now being born through surrogates in India every year, and is now $2.3 billion industry.

There have been several reports about the unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets around intermediaries importing human embryos and gametes were reported.

In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to regulate surrogacy arrangements. The guidelines stated that the surrogate mother would be entitled to monetary compensation, the value of which would be decided by the couple and the surrogate mother.

In 2008, the Supreme Court of India in the Baby Manji Yamada vs. Union of India case highlighted the lack of regulation for surrogacy in India.

In 2009, the Law Commission of India observed that surrogacy arrangements in India were being used by foreign nationals, and the lack of a comprehensive legal framework addressing surrogacy could lead to exploitation of poor women acting as surrogate mothers.

The Law Commission of India, in its 228th Report, had recommended prohibition of commercial surrogacy by enacting a suitable legislation.

In 2015, a government notification prohibited surrogacy for foreign nationals.

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SURROGACY REGULATION BILL, 2016

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016. It was referred to the Parliamentary Standing Committee on Health and Family Welfare on the 12th of January 2017. After long deliberations with various stakeholders and experts, they submitted their report on 10th of August, 2017.

The proposed legislation ensures effective regulation of surrogacy, prohibit commercial surrogacy and allow altruistic surrogacy to the needy Indian infertile couples.

The statement of objects and reasons of the Bill says “Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by the surrogacy clinics, which leads to rampant of commercial surrogacy and unethical practices in the said area of surrogacy”

Objectives of Bill

  • To regulate surrogacy services in the country
  • To provide altruistic ethical surrogacy to the needy infertile Indian couples
  • To prohibit commercial surrogacy including sale and purchase of human embryo and gametes
  • To prevent commercialization of surrogacy
  • To prohibit potential exploitation of surrogate mothers
  • To protect the rights of children born through surrogacy

Highlights of the Bill

  • The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by establishing National Surrogacy Board at the central level and, State Surrogacy Boards and Appropriate Authorities in the States and Union Territories.
  • The bill prohibits commercial surrogacy and allows altruistic surrogacy to Indian married couple who cannot bear children.
  • The surrogate mother should be a close relative of the intending couple and should be between the age of 25-35 years. She can act as surrogate mother only once.
  • The surrogate mother and the intending couple need eligibility certificates from the appropriate authority.
  • The bill allows only Indian citizens to avail of surrogacy. Foreigners, non-resident Indians and persons of Indian origin are banned from seeking surrogate mothers in the country.
  • Homosexuals, single parents, and live-in couples are also not allowed to have children via surrogacy in India.
  • Couples that already have children will not be allowed to go for surrogacy, though they would be free to adopt children under a separate law.
  • The intending couples shall not abandon the child, born out of a surrogacy procedure under any condition.
  • The child born through surrogacy will have the same rights as are available for the Biological child.
  • The intending couples shall not abandon the child, born out of a surrogacy procedure under any condition.
  • An insurance coverage of reasonable and adequate amount shall be ensured in favour of the surrogate mother.
  • All surrogacy clinics should be registered under this Act after the Appropriate Authority is satisfied that such clinics are functioning as per the law requires. The surrogacy clinics shall have to maintain all records for a period of 25 years
  • No person, organisation, surrogacy clinic, laboratory or clinical establishment of any kind shall undertake commercial surrogacy, abandon the child, exploit the surrogate mother, sell human embryo or import embryo for the purpose of surrogacy. Violation to the above provision shall be an offence punishable with imprisonment for a term which shall not be less than ten years and with fine which may extend to ten lakh rupees.
  • The Bill shall apply to whole of India, except the State of Jammu and Kashmir.

NATIONAL SURROGACY BOARD

  • National Surrogacy Board shall exercise the powers and shall perform functions conferred on the Board under this Act.
  • The Board shall consist of the Minister in-charge of the Ministry of Health and Family Welfare, as the Chairperson, Secretary to the Government of India in- charge of the Department dealing with the surrogacy matter, as Vice-Chairperson and three women Members of Parliament, of whom two shall be elected by the House of the People and one by the Council of State as Members
  • The National Surrogacy board and State Surrogacy board shall be the Policy making bodies and Appropriate Authority will be the Implementation body for the Act.
  • The appropriate authority shall comprise of an officer of or above the rank of the Joint Director of Health and Family Welfare Department, as Chairperson, an eminent woman representing women’s organization, as member, an officer of Law Department of the State or the Union territory concerned not below the rank of a Deputy Secretary, as member and an eminent registered medical practitioner, as a member

According to government statement, “Once in effect, the Act will regulate the surrogacy services in the country and will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfilment of certain conditions and for specific purposes.”

Criticisms against the Bill

  • Bill permits surrogacy only for childless heterosexual couples, who have been married for at least five years. Those who may be single, couples in diverse arrangements including live-in couples, as well as homosexual persons are all denied access to surrogacy. The exclusion of several persons on the basis of their marital status, sexuality and gender identity and orientation from surrogacy right can be considered as discrimination.
  • The given the patriarchal structures that prevail in India today, with the option of commercial surrogacy being totally removed, the likelihood of women being forced by family members to undergo surrogacy could increase.
  • According to the bill, surrogacy is allowed for the couple having a child and who is mentally or physically challenged or suffer from life threatening disorder with no permanent cure. Thus this clause equates a child with a mental or physical disability with ‘childlessness’. Not only is this discriminatory, but is also in clear violation of the rights of children with disabilities and their treatment with dignity.
  • The bill specifies “a guarantee of compensation for specified loss, damage, illness or death of surrogate mother during the process of surrogacy”. However, this provision must extend beyond the period of surrogacy to account for effects on health that may arise out of surrogacy, but manifest later.
  • According to the Bill, only married women with the consent of their respective husbands can act as surrogates, which is discriminatory and regressive.

(Sources: PIB, PRS, NDTV, TheWire, LiveLaw, TheNewsMinute)

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