THE SURROGACY BILL 2019: A SOCIO-LEGAL ANALYSIS
Submitted during the internship under Legal Specs by Bhumika Agrawal from the University of Petroleum and Energy Studies.
According to the Surrogacy (Regulation) Bill, 2019, surrogacy is the act of a woman conceiving and delivering a child for another person to give the child to them after delivery. This study makes an arduous attempt to elucidate key provisions of the bill, the numerous surrogacy arrangements, and the Indian government's position on the matter. The two kinds of surrogacy namely altruistic and commercial, have been explored in the context of the aforesaid Bill. The terms of altruistic surrogacy are outlined in bill. The law also touches on the certificates of eligibility and essentiality that are granted by the proper authorities. The measure also addresses the nomination of relevant state and federal authorities. The National Surrogacy Board (NSB) and the State Surrogacy Board shall be their names (SSB). The Report also discusses the possible penalties, which include jail time of up to 10 years and fines of up to 10 lakh rupees. This research endeavour also studies the government's point of view. The publication also includes professional opinions from a range of perspectives. For instance, the definition of near related clause, which allows the daughter-in-law to be made to act as the daughter's surrogate, is an example of exploitation. According to experts, individuals could disobey Article 14 of the constitution, which addresses the right to equality directly. Experts have also said that since the child grew up nearby, it would be difficult for the surrogate mother to handle the emotional anguish.
When a woman gives birth to a child for a couple who desires to have a child, this procedure is known as surrogacy and is conducted all over the globe. When the kid is born, the surrogate mother gives it to the parents.
There is a short history of surrogacy in India. When the government of India banned the practice in November 2015, the percentage of such births in the nation was approximately 80%. Due of this, several nations have outlawed commercial surrogacy. In order to safeguard both the unborn child's future and the surrogate's reproductive health, several European nations have outright banned surrogacy. In 2008, a Japanese medical couple had a child in a tiny Gujarati village, according to press reports. When the kid was delivered, the parents had already split up. Numerous similar occurrences led to PILs before the supreme court asking for restrictions on commercial surrogacy. The Law Commission of India's 228th Report made a similar recommendation to outlaw commercial surrogacy. There is a critical need for surrogacy legislation to be implemented immediately in the nation. A strict regulation must be created so that the practice of commercial surrogacy may be banned and controlled according to the law. For a very long time, this activity has been considered a business (worth around $400 billion).
KEY PROVISIONS OF THE BILL
The Surrogacy (Regulation) 2019 has several provisions, however this article focuses mostly on the important issues that this bill broadly addresses for the growth of society. Two different forms of surrogacy are included under the bill's coverage. Commercial and altruistic surrogates. Altruistic surrogacy refers to situations in which the surrogate mother receives no financial benefit beyond the cost of her pregnancy-related medical care and insurance. Most of the proposed law's surrogacy is of this kind, which also meets contemporary societal demands. Since surrogate mothers have been widely abused for a very long time, there is now a need to implement significant changes to address this societal issue. The second form of surrogacy is commercial surrogacy, which involves financial perks or rewards (in cash or in-kind) that go above and above the cost of the intended parents' medical care and insurance coverage.
Requisites for benevolent surrogacy
Childless couples must be between the ages of 23 and 50 for women and 26 to 55 for males and have been married for at least five years without experiencing a natural pregnancy.
The surrogate mother must be one among the relatives, according to a clause. In order to further explain it, the concept of "related" must be stated in the law with clarity.
It is stipulated that no money transfers, except those for medical or insurance costs, may be used as inducements.
The surrogate mother may only serve as a surrogate mother if she is between the ages of 25 and 35. She is only eligible to be a surrogate mother once in her lifetime.
Acts and Categories Prohibited in Surrogacy
Commercial surrogacy is one.
International visitors, NRIs, and PIOs
Partners who live together
Parents by Oneself
Singles and couples
All of the requirements as mentioned above must have been met by the Intending Couple. According to official comments, the meaning of a close relative will be made explicit in the bill's guidelines.
GOVERNMENT’S VIEWS ON THE BILL
Numerous reports allege widespread surrogate mother exploitation. Because they have no money, and poverty is a key contributing factor, women are compelled to engage in this behaviour. They struggle to provide for their families, forcing them psychologically to join the surrogacy industry. The Confederation of Indian Industries (CII) estimates that the surrogacy market is worth $2.3 billion. According to the Law Commission's 228th Report, commercial surrogacy should be prohibited. This idea forbids fashion surrogacy. Additionally, commercial surrogacy is used in human trafficking. A few nations, including California, the Ukraine, and Russia, permit commercial surrogacy. The main goal is to preserve the Indian ethos in mind and prevent the family from being twisted.
The Surrogacy (Regulation) Bill of 2020 was recently enacted by the cabinet as a result of the government's desire to defend itself against the accusations brought forward by the Surrogacy (Regulation) Bill of 2019. The government is making an attempt to prohibit the exploitation of surrogate mothers in some manner, and almost all elements have been properly handled in the aforementioned statute. The government intends to take a strong stance against the $2.3 billion sector and make sure that it no longer exists in the future. The government wants to ensure that commercial surrogacy is outlawed in all respects rather than playing with the surrogate mother's feelings.
BROAD APPROACH IN THE BILL
It suggests that widows and divorced women and infertile Indian couples may also profit from its provisions and permit any "willing" woman to be a surrogate mother.
The law also suggests regulating surrogacy via establishing a National Surrogacy Board at the federal level, State Surrogacy Boards, and the proper authorities in the various states and Union Territories.
The planned insurance coverage for surrogate mothers has been extended from the 16 months offered in the previous version to 36 months.
Commercial surrogacy, including selling and purchasing human embryos and gametes, will be outlawed.
If certain requirements are met, ethical surrogacy for Indian married couples, Indian-origin married couples, and Indian single women (only widows or divorcees between the ages of 35 and 45 years old) would be permitted.
This strategy demonstrates that the government is concerned about the surrogacy (Regulation) Bill 2019 and is working hard to make sure that it is a strong, effective, and efficient law. The administration is more worried about the actual execution of the law than it is about the bill's passage itself.
Manaji Yamada vs UOI (2008)
In this instance, a contract was made between a Japanese couple and an Indian lady to function as their child's surrogate mother. Following this, the Indian surrogate mother delivered Baby Manji Yamada. Additionally, Mr. Yamada, the commissioning father, attempts to bring his kid to Japan; however, the Japanese embassy in India rejects his application since the surrogate child is not recognised under the Japanese civil code. After that, Mr. Yamada attempted to apply for an Indian visa, which calls for a birth certificate. On the birth certificate, the names of the child's father and mother must be listed, but in this case, even though Mr. Yamada was the baby's biological father, the mother's name was ambiguous because there were three mothers involved: the commissioning mother, the egg donor, and the surrogate mother. As a result, the Indian government refused to grant Manji a visa. Manji was eventually permitted to leave the country with her grandma thanks to intervention from India's highest court. Following the Manji case, the Supreme Court of India ruled that surrogacy is legal in India in 2008. As a result, many people worldwide are now considering surrogacy in India.
Juz Balaj vs Anand Municipality (2008)
The intended parents in this instance, a German couple, used a surrogate mother who gave birth to twins. The twins of this German couple who lived and worked in the UK now had to travel with an Indian passport. The passport authorities denied the twins' request for passports because they lacked citizenship and the case involving the process was in court. In Germany, there were no surrogacy laws. The Supreme Court permitted the children to go, i.e., permission to leave the nation, and German authorities permitted them to adopt the kids and fight for their rights.
Justice KS Puttuswamy vs. UOI (2019): - The district medical board certificate of infertility requirement is contrary to society's moral and ethical standards, the court found, and this fundamental right must be protected. Additionally, the court found that obtaining and displaying the certificate of infertility violates the right to privacy.
Reproductive tourism has gained ground in India as a result of the rise in IVF facilities there. People who advocate commercial surrogacy see it as a tradeable commodity. But the truth is a little bit different. Commercial surrogacy is now fraught with a number of ethical and legal difficulties.
The laissez-faire attitude of the surrogacy sector, as well as the legal void that permits breaches of human rights, problems with citizenship, unfavourable health policies, and several other concerns, need to be the hotly debated subjects in India.
In our contemporary period, the topic of surrogacy should centre on the interests and rights of the woman.
Some advocates recognise surrogacy's full commercial potential. They see a woman's capacity to have children as a means of empowering her in a world where they are often taken advantage of. Why can't women donate sperm while males may be compensated for doing so?
While some people believe that commercialising the process is unethically and socially harmful, they also believe that surrogate mothers are compensated for their labour.
Clinical procedures, including embryo transfer, miscarriages, and other health problems, are necessary for women with recurrent failures. Factors including hormone treatment, several embryo transfers, and a high risk of STDs need to be considered. Other drawbacks of surrogacy include insufficient compensation, the risk of human trafficking, a lack of contract understanding, restrictions on choice, worries about postpartum health, and more. However, in order to justify a prohibition, it is necessary first to assess the harm to surrogates' living circumstances.
Effective restrictions should be considered rather than outright prohibition to stop exploitation, the creation of the black market, and human trafficking. It's time to emerge from this slumber and forge a fresh course based on stringent laws and enforcement measures.
The laws need to be written such that they support the feminist movement. According to an altruistic model, the surrogate mother goes through all the psychological and physical changes out of pure compassion, which doesn't appear to be a realistic option.
Therefore, the "compensatory surrogacy model," which requires the intended parents to make up for losses in terms of health, income, suffering, and death, among other things, will be examined.
SHORTFALLS OF ENSURING REPRODUCTION FREEDOM AND SAFEGUARDING BODILY AUTONOMY
A significant step was taken by the Union Cabinet's approval of the Surrogacy (Regulation) Bill 2020 February 26, 2020, permits any "willing" woman to serve as a surrogate. The COVID-19 epidemic forced the bill to be put on hold. However, it is anticipated to be tabled as the 2021 Bill in the Indian Parliament's Lower House during the next session. Despite being a substantial improvement over the Surrogacy (Regulation) Bill 2019, the proposed legislation continues to take a needs-based rather than a rights-based approach, denying women the independence they are due.
The competing interests of surrogacy's many stakeholders are the main topic of discussion. On the one hand, it is the state's responsibility to stop the surrogate from being exploited and defend the unborn child's best interests. The right of women to control their own reproductive processes and the right of individuals to parenting are on the other hand. Surrogacy laws in India have had difficulty striking a balance between these competing interests.
India became a hotbed for transnational surrogacy when commercial surrogacy became legal there in 2002. This was mainly because no laws govern it, fertility facilities are inexpensive, and plenty of underprivileged women are eager to serve as surrogates. However, the women who decided to become surrogates experienced exploitation, subpar housing, and unethical treatment. The ethical aspects of commercial surrogacy didn't come under public criticism until the contentious case of Baby Manji Yamada v. Union of India.
As a result, efforts to establish laws governing surrogacy were attempted from 2008 through 2014, but none of them were successful. The Supreme Court was also petitioned by activist and attorney Jayashree Wad, who emphasised the dangers of the surrogacy business. Despite the Court's refusal to grant her relief, her petition hugely impacted public opinion and put enormous pressure on the government to enact legislation. The Lok Sabha introduced and approved the Surrogacy (Regulation) Bill, 2016 as a result. The Rajya Sabha ordered a Parliamentary Standing Committee to review the bill's contents but ultimately decided against passing it. The 102nd Report, which recommended gradual amendments to the 2016 Bill, served as the culmination of this endeavour.
Despite this, the 2019 Bill followed 2016 Bill exactly and disregarded the suggestions of the Parliamentary Committee. The surrogate cannot get paid for her services since commercial surrogacy is prohibited, and only altruistic surrogacy is permissible. Such limitations deprive women of their freedom to decide how to have children and perpetuate cultural norms that see women's domestic labour as having little economic worth. Once again, the Rajya Sabha rejected the Bill, and a Select Committee was established to suggest amendments to the law.
In order to make surrogacy more accessible, this Committee suggested removing the provision that defined "infertility" and required a five-year waiting time before issuing an infertility certificate. Additionally, it suggested that the provision that only permitted close relatives to serve as surrogates be removed because it "ignores the ground reality of most Indian families where women have little decision-making authority" and will lead to a situation in which women will be forced into performing reproductive work by their families. While the Committee has made improvements to some of the 2019 Bill's shortcomings, other, equally unfavourable, discriminatory issues remain. Furthermore, it does not advance a rights-based approach to obtaining surrogacy; instead, it retains a needs-based approach.
These changes coincide with a rising trend in which the Supreme Court expands the definition of "liberty" as defined by Article 21 To encompass the freedom to choose one's reproductive options. The Bill's prohibition on commercial surrogacy ignores the intersectional ways the law will affect women's entitlement to their bodies. According to the altruistic model, a woman should undergo the psychological and physical strain of being a surrogate for free and exclusively out of 'compassion. Such an expectation is patriarchal in outlook, unreasonable, and patronising. It prevents surrogates from having access to a good source of income. This thus substantially reduces the pool of women willing to participate in surrogacy and, inadvertently, prevents intended parents from using it.
The proposed Bill also prevents live-in couples, LGBTQ+ people, and single parents from having this chance. Even those who fall within its purview must obtain a "certificate of essentiality", proving that they are physiologically unable to conceive a child any other way. Other medical issues that, although not making women infertile, make childbearing riskier and more challenging are not considered.
It also does not consider situations where women could decide against becoming pregnant owing to obligations linked to their careers. Take a sportswoman, for example, whose professional duration often coincides with her childbearing years. In this situation, the lady will have to decide between giving up some of her already restricted active time in her work and becoming a mother. This hardly seems fair and raises the issue of whether a woman should be required to make this concession.
We firmly feel that the answer must be no. The urgent requirement is to acknowledge surrogacy as a "right" rather than a "necessity." The moral justifications for surrogacy being the last option are out of date. By claiming that the "pleasure of birthing one's kid cannot be compared to having one via surrogacy," women are denied the right to use surrogacy. This is against patriarchal norms. In a discourse based on rights, the State must play a significant part in advancing reproductive freedoms and rights to enhance reproductive health.
Since the surrogate will essentially have to put her life on hold during the latter stages of pregnancy, the legislation around surrogacy overlooks the possible loss of income the surrogate may experience. Instead of romanticising altruistic surrogacy by referring to it as a "social and noble act of the highest level" that "sets an example of being a model woman in the society," the Select Committee should have opted for the compensated surrogacy model, in which the intended parents pay for all prenatal and postpartum care costs as well as the surrogate mother's income losses related to the pregnancy. Additionally, she must be reimbursed for any costs related to the pregnancy, such as maternity apparel, extra nutritional supplements to support the pregnancy, culinary costs, etc.
The right to the parenting of the intended parent and the surrogate's bodily autonomy will not be protected by India's surrogacy laws until these changes are adopted and surrogacy is acknowledged as a reproductive right(s). The proposed surrogacy law casts a shadow over India's progressive advancement of the idea of equality, despite the country's residents' significant change in thinking away from patriarchal standards toward a more feministic ethos.
CONCLUSION AND SUGGESTIONS
The Surrogacy (Regulation) Bill, 2019 has been debated at different levels, including the government and other levels. However, it does not cover all elements of surrogacy. This has to be treated in many ways to develop into a helpful asset over time. The authorities in that field and the government have opposing viewpoints. According to the most recent information in February 2020, the Surrogacy (Regulation) Bill 2020 has been authorised by the cabinet and now covers divorced and widowed individuals in addition to infertile Indian couples6. The surrogate mother's insurance coverage was also extended by the Bill of 2020 from 16 to 36 months.
The government and other stakeholders must re-examine the provisions of the aforementioned measure.
It also serves to guarantee that the bill's provisions are implemented effectively. The due process of law should go without interruption, and those who violate it may also face harsh penalties.
The Surrogacy (Regulation) Bill debate is urgently needed to address all pertinent issues related to it adequately.