SURROGACY (REGULATION) BILL, 2020 INDIA SURROGACY (REGULATION) BILL, 2020 INDIA 

  SURROGACY (REGULATION) BILL, 2020 INDIA 

    Author:  Prerna Kumari, a Student of Christ Deemed to be University Delhi NCR

                                                                          

ABSTRACT:

Assisted reproductive technologies (ART), such as in vitro fertilization (IVF) and surrogacy, have made the dream of raising a child a reality for many. Due to high-quality medical services, low costs and an indifferent regulatory system, the surrogacy industry, especially in the commercial and cross-border sectors, is growing rapidly in India, and India was once called the “baby factory” of the world. The Indian government seeks to regulate surrogacy through a series of administrative measures to prevent exploitation of women.  At least two comprehensive bills regulating various aspects of surrogacy, the Assisted Reproductive Technology Act 2008 and the Surrogacy Regulation Act 2016, have been introduced in Parliament, but neither will see the light of day does not exist. With major scientific and technological advances in obstetrics and gynaecology. surrogacy is becoming a viable option for people of all genders to become parents. However, the path to reality remains fraught with legal and ethical dilemmas. With the Surrogacy Act 2021 coming into force early this year, this article aims to analyse the various legal nuances involved, taking into account the social norms that determine the actual scenario at ground zero. The Surrogacy Bill 2019 defines surrogacy as the act of a woman giving birth to a child with the intention of handing over the child to the couple after birth. This bill addresses her types of surrogacies:  altruistic surrogacy and commercial surrogacy. This bill establishes conditions for altruistic surrogacy. This bill also deals with the issuance of certificates of necessity and certificates of title by the competent authority. The Bill also deals with the appointment of appropriate authorities at the State and Central levels.

Keywords: society, human rights and legal issues of health, surrogacy Assisted Reproductive Technology (ART), Commercial surrogacy, Altruistic surrogacy, Surrogate, Surrogacy Regulation (2019) Bill.  

INTRODUCTION:

According to Black’s Law Dictionary, surrogacy is an agreement in which a woman agrees to be artificially inseminated in order to bear another woman’s spouse’s sperm.

Surrogacy is a procedure in which couples who want to have a child but are unable to do so due to infertility or other issues on the woman’s side give birth to a child. Surrogacy means that a surrogate mother agrees to bear a child for another person.  After the birth of a child, her biological mother transfers custody of the child to her natural parents. Surrogacy requires complex legal and medical procedures. It is important to know about the process, seek expert advice and build your support network with Fertility World Surrogacy Centre India. But the big question is whether India allows commercial surrogacy. The answer is a resounding yes. Commercial surrogacy has been permitted in India since 2002. This is a controversial legal issue in India. To this end, the Surrogacy Act 2020 has been introduced in Parliament. The law allows altruistic surrogacy but prohibits commercial surrogacy. In altruistic surrogacy, you do not have to pay any fees to the surrogate, except for pregnancy-related medical expenses and the surrogate’s insurance. Commercial surrogacy is a practice in which a surrogate mother gives birth to a child for economic reasons (in the form of cash or in-kind benefits).

EVOLUTION IN SURROGACY LAW:

• Assisted Reproductive Technology Bill, 2013:

The long-pending Assisted Reproductive Technology Bill of 2013 prohibits commercial surrogacy, which involves the exchange of money for anything other than paying for the mother’s and child’s medical bills. Surrogacy was also made unavailable to couples who already had one kid, foreigners or Overseas Citizens of India (OCI) holders, live-in partners, single individuals, gays, and widows, as well as couples who have had one child.

• Surrogacy (Regulation) Bill, 2016 and 2019:

A Surrogacy (Regulation) Bill was introduced and passed in the Lok Sabha, the lower house of the Indian parliament, in 2016, proposing that only Indian heterosexual couples married for at least 5 years with infertility problems be allowed to access altruistic or unpaid surrogacy, effectively prohibiting commercial surrogacy. The 2016 bill expired as a result of the parliament session’s adjournment. The bill was resurrected and passed by the Lok Sabha in 2019.

• Surrogacy (Regulation) Act, 2021:

The law defines surrogacy as a practice in which couples who are unable to have their own children due to infertility or illness are entitled to surrogacy procedures according to certain guidelines. Permitted only for altruistic purposes or for couples with proven infertility or illness.

Altruistic surrogacy does not include financial compensation for the surrogate mother, except for clinical costs and protection during pregnancy. In vitro therapy (IVF) is the most common and effective type of ART. The 2021 ART Regulations provide a framework for the implementation of the Surrogacy Act through the establishment of the National Assisted Reproductive Technology and Surrogacy Commission. In order to improve the facilities of surrogacy clinics, the Ministry of Health and Family Welfare issued the Surrogacy Regulations (Regulations) 2022 on June 21, 2022 on behalf of the Ministry of Mansk Mandaviya. The number of people and requirements have been decided. Learn more about the qualifications required for employees. It also stipulates the form and method of registration in surrogacy clinics and the procedure for payment of fees.

CIRCUMSTANCES FOR CHOOSING SURROGACY:

1. If you are unable to conceive due to illness.
2. Infertility and inability to carry a pregnancy to term.
3. Multiple miscarriages and unexplained medical causes.
4. If the woman does not have a uterus, has a missing or abnormal uterus, or has a disease that requires surgical removal.

SURROGACY PROCEDURE ELIGIBILITY CRITERIA:

The following documents should be issued to the intending couple by the appropriate authority:

• Certificate of Necessity
• Certificate of Eligibility

If the following conditions are met, a Certificate of Essentiality will be issued:

• A certificate from the District Medical Board confirming that one or both members of the eligible couple are infertile.
• Court order granting custody and legal custody of a surrogate child.
• Insurance that covers the surrogate mother’s postpartum issues for 16 months

CERTIFICATE OF SURROGATE MOTHER ELIGIBILITY:

• Married and mother of one child.
• Age range she is 25-35 years old 
• Close relative of the future couple.
• Certificate of medical and psychological health status of the prospective surrogate mother.
• Surrogates are also not allowed to donate reproductive cells for surrogacy.

IMPORTANT SURROGACY (REGULATION) BILL 2020 CHANGES:

• The bill requires the registration of surrogacy clinics and outlines offenses punishable by imprisonment and fines.
• The establishment of a National Surrogacy Board (NSB) and a State Surrogacy Board (SSB) is proposed to advise the government and monitor clinics.
• The bill allows surrogacy for Indian couples, including married couples of Indian origin and single Indian women (widows and divorcees aged 35-45).
• Insurance coverage for the surrogate mother was extended from her 16 months to her 36 months due to the risk of medical complications.
• This bill prohibits commercial surrogacy and allows only altruistic surrogacy without financial compensation other than basic medical expenses and insurance coverage.
• It also prohibits the sale and purchase of human embryos and gametes.
• The previous definition of “infertility” requiring five years of unprotected sex was deemed inappropriate by the Select Committee and removed.

 ISSUES IN THE SURROGACY (REGULATION) BILL 2020:

• Surrogacy destroys mother-child relationships, commodifies children, destroys nature, and exploits disadvantaged women in developing countries.
• Surrogacy usually involves gender selection, which is illegal in India.
• ART clinics operate an illegal sex determination and abortion industry under the pretext of surrogacy.
• Surrogacy poses a major threat to women’s health, and surrogacy is associated with many fatal health problems, including genetic problems, low birth weight, membrane damage, etc.
• Rights include the right to parenthood and reproductive rights. Right to leave descendants. people live here. Therefore, the country should not decide how to raise parents.
• Remuneration for pregnant women is generally relatively low, with ART clinics receiving a significant portion.
• But people who identify as LGBTQ+, cohabiting couples, and single parents would be denied this option under the proposed law.
• Many religions, including Catholicism, prohibit surrogacy, even IVF. states that having children is a gift, not a right, and that creating children by artificial means is morally unethical.

SURROGACY REGULATION ACT PROVISION:

• National and State Surrogacy Boards

The central government and state governments will establish National Surrogacy Boards (NSBs) and State Surrogacy Boards (SSBs) respectively.

 The functions of the NSB include: 

• Advising the central government on policy issues related to surrogacy
• Establishing codes of conduct for surrogacy clinics
• Supervising the functioning of state surrogacy boards 
• Regarding custody and abortion Regulations:

• Abortion of a surrogate mother requires: 
• The surrogate mother has the option to withdraw from surrogacy before the embryo is implanted. She is in the womb.
• Children born through surrogacy are considered to be the biological children of the intended couple.

OFFENCES AND PENALITIES UNDER THE BILL:

The following are the offenses listed in the bill:

1. Surrogate mothers are abandoned, exploited, or rejected.
2. sale or import of human embryos or gametes for surrogacy 
3. serving as or aiding with commercial surrogacy
4. Exploitation of surrogate mothers
5. The penalty for such a crime is up to ten years in prison and a one million rupee fine. 

CRITICISMS OF INDIAN SURROGACY REGULATION:

The altruistic model expects women to take on the physical and emotional burden of surrogacy for free and only out of compassion.

Such expectations are paternalistic, unrealistic and a patriarchal approach.

May deny the surrogate mother’s child the right to practice her profession and affect the surrogate mother’s source of income.

The Supreme Court ruled in Devika Biswas v. Union of India emphasized that reproductive rights are fundamental rights and limiting the bill to heterosexual couples violates her 2018 Supreme Court judgment.

The proposed law continues to deny this opportunity to LGBTQ+ people, cohabiting couples, and single parents.

A person within the jurisdiction must have a “required certificate” proving that the person is biologically incapable of bearing children in any other way.

This is similar to thinking about other medical conditions that may prevent a couple from conceiving in the future.

Cases where a woman wishes to abandon her pregnancy for occupational reasons will not be considered.

CASE STUDY:

1. In Baba Manji Yamada v. Union of India (2009), a child was born by an Indian surrogate mother to a Japanese couple who had separated before the child’s birth. Her biological father wanted to take the child to Japan, but there were no legal restrictions in this case. The Supreme Court of India then intervened and handed over the child to her grandmother. This incident led the Indian government to enact a law regulating surrogacy.
2.  In another case, Jan Balazs v. Anand Municipality (2008), the Gujarat High Court held that the birth certificate of a child born through surrogacy must include the name of the surrogate mother. A child was born to a surrogate mother of Indian nationality. However, the father of the claimed child was a German national.  After the child’s birth, Germany denied him citizenship. The whole issue was further complicated by the fact that prior to this case, there was no precedent regarding citizenship for foster children. That number grew exponentially as the case progressed. In the present case, the identity of the two children as Indian nationals was established at birth and they are therefore Indian nationals within the meaning of Section 3(1)(c)(ii) of the Nationality Act.

CONCLUSION:

Although this law is certainly a positive development as India is one of the hubs of surrogacy, there are few aspects of surrogacy that are inconsistent with this law. According to Article 21, the “right to life” is a fundamental aspect, which includes the right to reproduction. A woman’s right to bear children and the right to terminate a pregnancy are all included in reproductive rights. Therefore, restricting surrogacy while denying reproductive opportunities clearly violates Articles 21 and 14. The introduction of this law is seen as an important step for India as there is no law regulating surrogacy laws in India. The bill aims to ban much-needed commercial surrogacy and introduces various mechanisms such as Surrogacy Commission and relevant authorities to regulate surrogacy arrangements in India.

However, the bill has various deficiencies that the Legislature must address to ensure effective implementation of the bill. The proposed surrogacy law is a unique combination of social, moral, ethical, legal and scientific aspects that will ensure the improvement of the child’s condition while protecting the interests of the surrogate mother. Therefore, it is an effective attempt to reconcile conflicting interests in the surrogacy process’s mother and customer. Stiff penalties under the proposed bill will deter potential violations and ensure that all parties act fairly and proportionately. However, we recommend passing the Assisted Reproductive Technology (ART) Act of 2020. In 2020, the Surrogacy Ordinance No. was passed, creating a regulatory mechanism for the entire ART clinic and aiming for better regulation processes such as surrogacy and abortion.