Surrogacy can be referred to as an arrangement made between intending couple & surrogate mother, where surrogate mother offers to carry the child of an infertile couple through pregnancy and return the child once it is brought into existence through birth. Surrogacy Regulation Bill is a social legislation, which was urgently required to regulate the present surrogacy related malpractices in India, after there were reports of abandonment of the child, death of surrogate mother & violation of human rights of surrogate mother. The Union Cabinet recently approved the Surrogacy (Regulation) Bill after incorporating 23 recommendations from Rajya Sabha Select Committee. Surrogacy has been a very contentious topic in India. The ethicality of borrowing a womb has always remained controversial. The present Surrogacy Regulation Bill aims to strike a balance between the human rights of surrogate mother and rights of intending couple & child.
There are the major highlights of the bill;
Firstly, it bans surrogacy undertaken for commercial purpose but permits altruistic surrogacy.
Secondly, amendment with regard to surrogacy bill is deletion of the term ‘infertile’ stated in the act as ‘the inability to conceive after five years of unprotected intercourse’ since it was deemed that 5 years is a too long a duration.
Thirdly, the scope of who can be a surrogate mother has been widened by inserting the term willing; hence whosoever is ‘willing’ is qualified to be a surrogate mother of the child, earlier it was restricted to the relative of the intending couple.
Fourthly, the bill intends to regulate surrogacy by establishing a National Surrogacy Board & State Surrogacy Board.
Fifthly, the benefits of ethical surrogacy is extended to-
- Indian Married Couples
- Indian-Origin Coupes
- Indian Single Women (only widow or divorcee between the age of 35 and 45 years) and foreigners were banned to avail surrogacy in India.
Sixthly, the duration of the insurance cover for surrogate mothers has been extended to sixteen months from earlier thirteen months.
Seventhly, the surrogate mother will have an option to withdraw from Surrogacy before the embryo is implanted in her womb.
Every Couple has an inner desire to expand their family; surrogacy is one of the just ways to serve that purpose. Why many couples opt for surrogacy are as follows-
- Couples who are unable to conceive or those who are infertile opt for surrogacy.
- Couples who might be suffering from any medical condition, preventing them for conceiving.
- Couples who don’t want to opt for complicated legal procedure of adoption & prefer blood link.
National & State Surrogacy Board
The Bill also advocates in the favour of establishing national & State boards to regulate & to keep a check on the practice of surrogacy across the country.
National Surrogacy Board are authorised to perform below-stated functions prescribed under Section 23 of the Bill-
- To advise the Central Government on policy matters relating to surrogacy.
- To review and monitor the implementation of the Act, rules and regulations made thereunder and recommend to the Central Government.
- To lay down code of conduct to be observed by persons working at surrogacy clinics.
- To set the minimum standards of physical infrastructure, laboratory and diagnostic equipment and expert manpower to be employed by the surrogacy clinics.
- To oversee the performance of various bodies constituted under the Act and take appropriate steps to ensure their effective performance.
- To supervise the functioning of State Surrogacy Boards.
Whereas State or union territory surrogacy boards are authorised to perform below-stated functions prescribed under Section 24 of the Bill-
- To review the activities of the appropriate authorities functioning in the State or Union territory and recommend appropriate action against them.
- To monitor the implementation of the provisions of the Act, rules and regulations made thereunder and make suitable recommendations.
- To send such consolidated reports as may be prescribed, in respect of the various activities undertaken in the State under the Act, to the Board and the Central Government.
Conditions under which Surrogacy is permitted in India:
Conditions under which surrogacy is specifically permitted in India is specifically dealt under Section 4(ii) of the Bill. It is stated below-
- When an intending couple has a medical indication necessitating gestational surrogacy.
- When it is only for altruistic surrogacy purposes.
- When it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures.
- When it is not for producing children for sale, prostitution or any other form of exploitation.
- Any other condition or disease as may be specified by regulations made by the Board.
Eligibility Criteria for Intending Couple to opt for Surrogacy:
Section 4(iii)(a) of the Bill spells out the conditions which the intending couples needs to fulfil in order to be qualified to opt for surrogacy, if the same is not fulfilled it will disqualify Director or in-charge of the surrogacy clinic and the person qualified to do so to initiate the surrogacy.
- The intending couple is in possession of a certificate of essentiality issued by the appropriate authority.
- A certificate of a medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.
- Order passed by a court of the Magistrate of the first class or above, regarding transfer of custody of a child on an application made by the intending couple or the intending woman and the surrogate mother.
- Insurance coverage of such amount as may be prescribed in favour of the surrogate mother for a period of thirty-six months.
Eligibility for Surrogate Mother
Section 4(iii)(b) of the Bill spells out the conditions which needs to be fulfilled by Surrogate mother, Which is stated below-
- The surrogate mother is in possession of an eligibility certificate issued by the appropriate authority.
- No woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother.
- A woman can be a surrogate mother only once in her lifetime.
Penalties under the Bill
Various penalties under the bill has been stated for various malpractices engulfing surrogacy like abandonment of surrogate child, exploitation of surrogate mother , commercial surrogacy are made punishable offences under the bill, who’s punishment is stated upto 10 years of imprisonment and fine upto 10 Lakh of fine, depending upon the magnitude of the offence.
Criticism of the Bill
Article 14 –
It is pertinent to mention that the present bill goes against the constitutional mandate of Article 14 of the constitution. Under the constitution of India, this article states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. ‘Equality before the law’ means that amongst equals the law should be equal and should be equally administered and that like should be treated alike. In order to pass the test of permissible classification, two conditions must be fulfilled. (1) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (2) The differentia must have a rational relation to the object sought to be achieved. Since in the present matter, there is no basis for differentiating people on the basis of nationality, marital status, sexual orientation, age of the people and other such parameters. Hence the test of reasonable classification is not passed.
It is further pertinent to mention that the present bill violates the right to privacy of an individual since it intrudes into private choices of an individual like autonomy over her reproductive choices therefore offending Article 21 of the Indian Constitution. This also goes against the principle laid down in the case of K.S. Puttaswamy v. Union of India where the court stated that reproductive choices of the women is their constitutional right citing personal liberty under Article 21 of the Constitution of India.
Surrogacy Regulation Bill is social legislation, which was needed for the hour to regulate the present surrogacy related malpractices in India after there were numerous reports of abandonment of the child, death of surrogate mother & violation of human rights of a surrogate mother. The present surrogacy bill has attempted to bring much-needed reforms to regulate surrogacy in India. The present Surrogacy Regulation Bill aims to strike a balance between the human rights of surrogate mother and the rights of intending couple & child. It is worth mentioning that the bill has succeeded to a very large extent in achieving its desired objectives but there are still concerns of privacy & equality that needs to be addressed urgently in order to be effective in meeting its desired objectives.
Questions covered by Article
- What are the major highlights of the Bill?
- What are the reasons for opting for Surrogacy?
- What are the Main Objectives of the Bill?
- What are the functions of National & State Surrogacy Boards?
- Conditions under which Surrogacy is permitted in India?
- What is the Eligibility for Surrogacy?
- Reason for criticising the Bill?
 Section 23 of The Surrogacy (Regulation) Bill.
 Section 24 of The Surrogacy (Regulation) Bill.
 Section 4(ii) of The Surrogacy (Regulation) Bil.
 Section 4(iii)(a) of The Surrogacy (Regulation) Bill.
 Section 4(iii)(b) of The Surrogacy (Regulation) Bill.
 Article 14 of The Indian Constitution.
 Jennings, Law of Constitution (Ed 5th New Delhi) P.94.
 Bidi supply co. vs. Union of India 1956 267, 281 AIR 1956 SC 479: Nagpur Improvement Trust vs. Vithal Rao, (1873) 1 SCC 500.1 SCC 500.
K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1.
- Section 24 of The Surrogacy (Regulation) Bill.
- Section 4(ii) of The Surrogacy (Regulation) Bil.
- Section 4(iii)(a) of The Surrogacy (Regulation) Bill.
- Section 4(iii)(b) of The Surrogacy (Regulation) Bill.
- Article 14 of The Indian Constitution.
- Jennings, Law of Constitution (Ed 5th New Delhi) P.94.
- Bidi supply co. vs. Union of India 1956 267, 281 AIR 1956 SC 479:
- Nagpur Improvement Trust vs. Vithal Rao, (1873) 1 SCC 500.1 SCC 500.
- K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1.
- A Critical Analysis of The Surrogacy (Regulation) Bill, 2019 by Diganth Raj Sehgal.
- Indian Kanoon