The Surrogacy (Regulation) Bill, 2016, was passed by the Lok Sabha on 19 December 2018. But the Bill still needs to be passed by the Rajya Sabha and receive presidential assent before it can become law.
If passed in its current form, however, the Bill has significant implications both for potential parents who are seeking a surrogate mother to bear their child, as well as for potential surrogates.
1. Commercial surrogacy (allowed in India since 2002) is prohibited. But altruistic surrogacy is allowed for Indian nationals married for five years where the woman cannot carry a child. Foreigners (including Indian origin), and non-resident Indians are no longer allowed to seek surrogate mothers in India.
2. The surrogate must be an Indian national, aged 25-35 years, with at least one child already. She must be a close relative of the intending couple.
3. Surrogacy is not allowed for couples that already have children.
4. Surrogacy will be regulated by new authorities at central and state level. The surrogate mother and the intending couple need eligibility certificates from the appropriate authority.
What, then, should we make of these potential new regulations?
The popular news media have often published sensationalist stories that show commercial (compensated) surrogacy as always and necessarily exploitative, whereas altruistic surrogacy is not viewed in the popular imagination as exploitative. There is also a perception that couples who commission surrogacy do so because they are very wealthy, self-interested, or body-conscious.
But in reality, nearly every couple that commissions surrogacy does so not on account of wealth or vanity, but because they have untreatable conditions such as the absence of a womb, or uterine abnormalities. Above all, couples who seek surrogacy long to carry their own children. Surrogacy is the last resort for them, not the first.
One of the most important points to be made from the beginning is that India does indeed need effective regulation of its fertility services, including surrogacy. This is a serious and pressing challenge. But regulation must be formulated on the basis of sound science, both medical and social.
The question of “altruistic” surrogacy and exploitation
“Altruistic” surrogacy means surrogacy in which no charges, expenses, fees, remuneration or monetary incentive, except the medical expenses incurred by the surrogate mother, and the insurance cover for the surrogate mother, are given to the surrogate mother or her dependents or her representative.
The new Bill totally removes the option of “commercial” (compensated) surrogacy. We should recognize that the likelihood of women being forced by family members to act as surrogate mothers is therefore very likely to increase.
The five-year threshold
The five-year marriage threshold for surrogacy allows time for infertility to be confirmed and also shows that the marriage is stable. On the other hand, in a society where people are waiting until their 30s or even 40s to settle down, a five-year wait can affect the quality of gametes and diminish the chances of children being born through surrogacy. And in cases of structural infertility, such as the absence of a uterus, the rationale for waiting is less obvious.
Indians’ right of freedom and privacy
Questions must also be asked about the five-year waiting period as a potential breach of the fundamental right to reproduction and the right to privacy. Moreover, the couple intending to adopt the child must consist of a female between 23 and 50 years, and a male between 26 and 55 years. The Bill provides no explanations for these requirements, and ought to be tested against the Supreme Court’s verdict giving citizens a right to privacy and the freedom to make their own decisions, including in matters of “family life and procreation”.
Surrogacy and the adoption crisis
In India, there are especially deep emotional, family, and social reasons why potential parents prefer biologically related children. A positive effect of the new Bill might be to encourage potential parents away from this preference for biologically related children and towards adoption. Potential parents who are unable to access a close relative as a surrogate will not be able to have a child by surrogacy. In such cases, adoption is likely to be the best option for making a family. Out of the millions of rescued children in India who need to be provided with a family, only 3,276 were adopted in 2017.
Single people and same-sex couples
The new Bill defines a “couple” as a “legally married Indian man and woman above the age of 21 years and 18 years respectively”, and restricts the option of surrogacy to such couples only (subject to the five-year threshold).
The question of the ability of widowed and other single women (especially those who live within a larger family household), and those in live-in and same-sex relationships, to raise children need to be examined more openly in the light of scientific studies that show surrogate children brought up by non-normative families are as well-adjusted as any other.
Another way forward?
We must acknowledge that many surrogates have been badly exploited. But the potential for exploitation is linked to the lack of regulatory oversight and lack of legal protection to the surrogate.
Further regulation of the IVF sector as a whole is required, especially in relation to the transparency of success rates, and the use of viable donor gametes. Above all, informative documentation and reliable information must be given to patients and surrogates.
Surrogates must be selected and screened properly, and care over their physical and psychological health must be secured. Appropriate insurance and support for the surrogate’s family when she is carrying the baby must be provided. At the same time, we must look after the rights of the commissioning family.
If surrogacy allows many poor women to provide their own children with education, to build a home, or start a small business, why should we take this opportunity away? Very few couples or surrogates opt for surrogacy out of choice. Both parties have their own needs: a baby for the prospective parents and money for the surrogate mother.
But instead of addressing the exploitation and making it easier and safer for both parties, the Bill currently making its way through the Indian Parliament brings surrogacy to a standstill. Banning “commercial” surrogacy will only serve to end the hopes of couples who are not willing to, or who cannot choose “altruistic” surrogacy.
And why should some women not be allowed to undertake the work of surrogacy in the interests of family-building as long as their employment is suitably compensated, robustly regulated, and performed within licensed clinics that are monitored by an independent regulatory body? The legislative responsibility here is not to ban their right to choose but rather to ensure that surrogates are fully protected from exploitation while in that employment.
A little thought on the Indian surrogacy bill written by Dr Indranil Saha.