SURROGACY (REGULATION) BILL, 2019: LACUNAE OVERLOOKED
Updated: Aug 28, 2020
By- Divyanshi Saxena, 2nd Year B.A. LL.B Student at University Five Year Law College, University of Rajasthan, Jaipur
INTRODUCTION AND WORLDWIDE PERSPECTIVE
The word 'surrogate' has been derived from the Latin word 'surrogatus' which means 'substitute'. Accordingly, being a surrogate means being a substitute. Black's Law Dictionary defines surrogacy as the process of carrying and delivering a child on behalf of the other woman. Surrogacy can be bifurcated differently depending upon the basis of classification. The type of surrogacy which has been the point of debate in legal bailiwick is commercial surrogacy. When surrogacy is bifurcated on the basis of consideration given to the surrogate mother, we have altruistic surrogacy and commercial surrogacy. The former refers to the surrogacy in which only necessary expenses are given to the surrogate mother while the latter refers to the surrogacy where consideration over and above necessary expenses is given. Surrogacy laws vary from country to country. The countries which completely prohibit surrogacy include France, Germany, Sweden, Iceland, Italy, and Spain. Some countries like Kenya, Malaysia, and Nigeria have neither prohibited nor regulated surrogacy. Countries like India, United Kingdom, Denmark, South Africa, Australia, Canada, and Greece allow only for altruistic surrogacy while countries like Ukraine, Thailand, and Russia have legalized surrogacy. Thus, it is evident that there is no uniform law across the world in regard to surrogacy.
The Hon'ble Supreme Court in the case of Baby Manaji Yamanda v. Union of India legalized commercial surrogacy. Conversely, the Law Commission in its 228th report (Need for Legislation to regulate Assisted Reproductive Technology clinics as well as rights and obligations of parties to a surrogacy) recommended for the prohibition of commercial surrogacy. A Public Interest Litigation was filed by Smt. Jayshree Wad in the Supreme Court seeking a ban on the commercialisation of surrogacy. Accordingly, notices were issued by the apex court to the Ministries of Law and Justice, Commerce and External Affairs, Home Affairs and Health and Family Welfare along with the Indian Council of Medical Research (ICMR) and Medical Council of India (MCI). Owing to legal notice Cabinet Secretariat filed an affidavit submitting that the legislation will be brought early. In 2014, the Department of Health Research-informed about the circulation of the draft bill of surrogacy for inter-ministerial consultation. A Group of Ministers was constituted for deliberating upon the provisions of the said draft bill. After due suggestions and conclusions by the Group of Ministers and requisite consultation with the Ministry of Law and Justice, the bill was finalized. It was approved by the Cabinet and consequently was introduced in the Parliament on 21st November 2016 where it was referred to Parliamentary Standing Committee on Health and Family Welfare whose 102nd report was laid down on the table of Lok Sabha as well as Rajya Sabha in the year 2017. After accepting 26 recommendations out of 42 recommendations made by the Committee, Cabinet approved the bill on 21st March 2018. The bill was introduced in Lok Sabha in July 2019 and was passed by it in August 2019. It was then sent to Rajya Sabha and eventually in November 2019 was referred to Select Committee. The Select Committee of Rajya Sabha held ten meetings starting from December 2019 to February 2020 and proposed significant amendments to the bill. The Union Cabinet approved the Surrogacy (Regulation) Bill, 2019 after incorporating recommendations of the Select Committee in the year 2020. Following are the major changes suggested by the Select Committee:-
Substituting 'compensatory' for 'altruistic' - It has been recommended by the Committee to use the term 'compensatory surrogacy' instead of 'altruistic surrogacy' as, otherwise, the legislative intent of preventing exploitation of surrogate mothers will be defeated for altruistic surrogacy is deemed to be done out of compassion which will eventually lead to exploitation of the surrogate mother whereas compensatory surrogacy will comprise of all the expenses and losses incurred on account of the surrogacy. But the Department of Health Research stated that the use of 'compensatory surrogacy' may lead to commercialization of surrogacy and hence not incorporated in the bill. Moreover, insurance coverage has been provided for the surrogate mother in the bill. Therefore, 'and such other prescribed expenses' were added to clause 2(b) which contains the definition of altruistic surrogacy in order to cover expenses and losses other than medical expenses. Thus, the term 'altruistic surrogacy' was not altered and the intent of recommendation was fulfilled.
Deletion of Clause 2(j) - Clause 2(j) defines the term 'infertility' and when it is read with clauses 2(r), 4(ii)(a) and 4(ii)(a)(I), it provides eligibility criteria for availing surrogacy procedure. Infertility was defined as the inability to conceive after 5 years of consummation of the marriage. Also, it made it mandatory for the couple to obtain a certificate of infertility from the District Medical Board. The Committee recommended the deletion of the said clause as the time period of 5 years is a very long and mandatorily obtaining certificate of infertility can be offensive as well as insulting.
Amendment of Clause 2(q) - Clause 2(q) defines insurance to be provided to the surrogate mother. Committee recommended for covering medical expenses as well under the insurance along with other provided expenses.
Insertion of Clause 2(r)(a) - Clause 2(r)(a) defines intending women which include a widow or a divorcee aged between 35 to 40 years.
Extending surrogacy to a couple of Indian origins - The Committee recommended that a couple of Indian origins may be allowed to avail surrogacy in India.
Agreement - The Committee recommended for a tripartite agreement between the intending parents, surrogate mother, and the authority.
Extension of insurance cover - The Committee recommended for extending insurance cover from 16 months to 36 months.
Removal of the term 'close relative' - Clause 4(iii)(b)(II), as recommended by the Committee, is amended to remove the restriction that surrogate mother shall be a close relative of intending parents.
CONCLUSION AND SUGGESTIONS
The recommendations by the Select Committee are undoubtedly well thought of and have been pondered over in detail but still, the bill has major lacunae. The foremost being allowing only married couples, widows, and divorcees (female) to avail surrogacy. This violates articles 14, 15, and 21 of the Constitution of India as LGBTQ+ community, live-in couples, single males, single females (except widows or divorcees) have been completely neglected. This infringes the reproductive autonomy of the mentioned sections of people and violates article 21. The object of the Legislature is the prevention of exploitation of surrogate mothers has no nexus with the proposed differentia and hence is violative of Article 14. Overlooking the LGBTQ+ community violates article 15. After the pathbreaking judgment in Navtej Singh Johar, such discrimination by the Legislature was not expected of, that too without intelligible differentia.
A blanket ban has been introduced on commercial surrogacy for preventing the exploitation of surrogate mothers. This seems ironic as at one point of time India was considered as surrogacy hub and Anand (Gujarat) was regarded as the surrogacy capital of the world. Even the apex court in 2009 legalized commercial surrogacy. In my opinion, the Bill could have efficiently regulated commercial surrogacy as it provides for the hierarchical setup of medical boards and registration of surrogacy clinics. In addition to this, it provides for punishment when the offense of exploiting the surrogate mother is committed. Moreover, there is no certainty that surrogate mothers will not be exploited in altruistic surrogacy.
The minimum age of intending couples is 23 and 26 years in case of female and male respectively which shall be brought at par with the legal age of marriage that is 18 and 21 in the case of female and male respectively. Besides, it provides that the couple shall have not had any surviving child biologically, through adoption, or through surrogacy (a child who is physically or mentally challenged or is suffering from a life-threatening disorder or fatal illness is an exception). This provision infringes reproductive autonomy to a great extent, that too without any reasonable cause.
Furthermore, the age provided for surrogate mothers is also questionable. The upper limit being 35 years cannot be challenged due to medical complications in the female body but the lower limit that is 25 years shall be brought at par with the legal age of marriage. In addition to this, it provides that the surrogate mother should be married and shall have at least one child. This restriction, again, has no reasonable basis.
The Committee recommended for a tripartite agreement overlooking the fact that there can be the utmost 5 parties in a contract of surrogacy, namely, genetic father, genetic mother, surrogate mother, commissioning father, and commissioning mother. Contract of surrogacy being a specific contract shall have a separate set of provisions for governing it efficiently.
To sum up, even after referencing to Select Committee the Bill has serious lacunae that infringe rights of individuals and fail to fulfill legislative intent.
 Surrogacy in Black Law Dictionary, Family Law; p. 349.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)