Experts maintain that the Surrogacy Regulation Bill, 2016, is a “violation of basic rights of privacy and fundamental rights of reproductive autonomy.” The bill is yet to be tabled in Parliament.
The bill proposes an absolute ban on commercial surrogacy. It restricts altruistic surrogacy ( which means blood relative) to infertile Indian couples who are married legally for at least five years. Additionally, the husband should be between 26 and 55 years of age and the wife 23 to 50 years of age.
The most controversial and disputable aspect of the bill is that Indians residing overseas, citizens from other nationalities, unmarried or engaged couples, single parents, live-in and homosexual couples cannot engage in surrogacy. The bill also cites that only a blood relative, who is married and is herself supporting a child, and is not an NRI or a foreigner, is allowed to be a surrogate mother, and that too only once in a lifetime. Indian couples who sustain biological or adopted children are barred from resorting to surrogacy. Furthermore, in the undertaken surrogacy contract, the parents are not allowed to compensate the surrogate mother in any way other than the required medical expenses.
Commercial surrogacy in any form will result in a 10-year term in jail and a penalty of Rs 10 lakh.
The draft bill appears to have been framed without addressing the actual concerns of the surrogacy arrangements in India. Experts believe that t he state cannot interfere in the paernthood decision of an individual whether by artificial means or surrogacy. The bill needs to be debated and thrown open for the stakeholders’ concerns and opinions.
Chithra P. George, a lawyer based in Kerala said, “The draft surrogacy bill gives an impression that it has been framed without addressing the actual concerns of the surrogacy arrangements in the country. The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions”. She further added, “Another aspect of the Bill is that to enter into a surrogacy arrangement, it is a prerequisite for the commissioning couple to not have any physically and mentally fit biological or adopted children. This provision appears as an imposition by a police state on the rights of a couple to procreate through the means of their choice”.
Anil Malhotra, a practising lawyer who regularly appears as a counsel in the Supreme Court of India said, “The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the State, and does not warrant interference of a fundamental right. It is for the person and not the State to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the State, constitutionally and legally cannot interfere or impose itself. Moreover, infertility cannot be made compulsory to undertake surrogacy. The proposed law ought to be put in public domain for viewpoints of stakeholders before the Parliamentarians debate on it. Democratically, all perspectives must be considered before opinions voiced, conclusions drawn and decisions are taken or announced. The view of the Government cannot be super imposed over the will of the people”.
Altruistic surrogacy formulated in the bill curtails both probable surrogate mothers as well as couples who desire or long for an offspring. Partners who cannot find willing blood relatives have merely one option left and that is adoption. In other countries where altruistic surrogacy is legal, it is not limited only to relatives and singular pregnancies unlike India.
