Rajya Sabha members voice concerns around Surrogacy Bill 2019: Here's what's at stake

After getting the green light from Lok Sabha in August, the Surrogacy (Regulation) Bill, 2019, is currently up for debate in the Rajya Sabha. If and when it gets the nod from the upper house of Parliament, it will pass into an Act.

But before that, parliamentarians and public policy advocates are trying to raise — and address — some gnarly issues in this important Bill.

Brass tacks

Surrogacy is “an arrangement in which a woman agrees to undertake a pregnancy with the intention to carry it to term and hand over the child to the parents for whom she is acting as a surrogate”.

The traditional method is the insemination of the eggs of the surrogate either artificially or via coitus, whereas the gestational method involves in-vitro fertilization (IVF). The embryo is implanted in the surrogate’s body - the gametes (sperm and ova) may belong to the recipient parents or could be donated.

At the risk of stating the obvious, surrogacy affects the mental and physical health of at least four people: the woman who carries the baby to term, the couple who opt for surrogacy and the child born of it.

The Surrogacy (Regulation) Bill: A recap in 11 points

Passed by the Lok Sabha on 5 August 2019, the Bill provisions:

1. To ban commercial surrogacy: if this Bill comes into force, only “altruistic surrogacy” will be allowed. Meaning, there will be no further monetary compensation beyond covering the medical costs of pregnancy and postpartum insurance.

2. The surrogate will have to be someone from the recipients’ family. According to the Bill, she will have to be a married woman aged 25-35, certified mentally and psychologically fit and have a child of her own. A woman can only be a surrogate once.

3. Only heterosexual Indian couples who have been married for five years or more will be able to opt for surrogacy.

4. One or both partners will have to be certified infertile to be eligible. Further, the law will mandate their ages: between 23 and 50 years for the wife and 26 to 55 for the husband.

5. Couples who already have a child will not be able to opt for surrogacy unless the child is mentally disabled or suffering from a terminal illness.

6. Foreigners will no longer be allowed to come to the country for surrogacy.

7. Only gestational surrogacy will be permitted under the new law.

8. Only surrogacy clinics approved under the Act would be able to carry out the procedure.

9. It will become illegal to abandon or disown a surrogate child.  

10. A national surrogacy board and state surrogacy boards will be constituted to implement the law.

11. Those found violating the above laws will be liable to a fine of Rs 10 lakh or imprisonment for 10 years.

‘India: A surrogacy hub’

One of the arguments offered in favour of banning commercial surrogacy is that it might reduce the exploitation of women, some of whom are forced by their families to become surrogate moms for money and some of whom become surrogates multiple times. According to government estimates, the country’s surrogacy industry is worth $445 million powered by 7,000-8,000 mostly illegal clinics.

The argument is that lower costs and lax laws have made India an attractive destination for foreigners looking for surrogates. However, the unregulated market has generated reports of unethical practices, exploitation of surrogate mothers and abandoning of children. For example, a study found that in some cases more than the permissible limit of three embryos were transplanted into the mothers.

A leading gynaecologist, who did not want to be named, said there are “horrendous cases of exploitation. Often, these women live in unhygienic quarters and receive only a fraction of the money they are promised".

She added: “The Bill says only IVF clinics that meet certain criteria will be able to do the procedure. These clinics will have an added incentive to see to the well-being of these women because they have a reputation to protect. Think about what happened when the government made it illegal to reveal the sex of a baby in the womb - every clinic with an ultrasound machine had to meet so many criteria.”

The Indian Council of Medical Research (ICMR) in the past has released draft guidelines on assisted reproductive technologies (ART) suggesting regulations on the ART industry. The government has separated surrogacy from other forms of ART, and it appears that the ART draft Bill will not be tabled in the foreseeable future.

Healthy debate

During the discussions in Rajya Sabha over the last couple of days, various members have questioned the clauses around altruistic surrogacy, the fact that couples have to be married for five years or more to be eligible, and the limited reasons for choosing the surrogacy option.  

Congress leader Professor M.V. Rajeev Gowda, among others, has made a case for compensatory rather than altruistic surrogacy. His explanation: “reproductive labour must be acknowledged and the woman compensated”. The Congress leader also suggested the likelihood of exploitation within families, given the structure of the Bill.  

Others, such as the Communist Party of India (Marxist) leader K. Somaprasad, have reasoned that advances in science can ascertain the status of fertility, so the five-year condition is misinformed.

It remains to be seen whether the Bill will again be referred to the Parliamentary Standing Committee or be passed into law soon.

Yays and nays

While some, like the gynaecologist quoted above, think that the law will protect women and children born of surrogacy to some extent, others say we can’t close our eyes to the fact some of the activities linked to surrogacy will now be pushed further underground and beyond supervision.

New Delhi-based Sama, a resource group for women and health, is one such group that has pointed out the lacunae in the Bill.

“The fear is that banning the practice (of commercial surrogacy) altogether will take it further underground. Where will women turn then if they face abuses or medical negligence when the whole practice is branded criminal? To my mind, the Bill does not provide the path to ensure the agency and rights of women,” Deepa Venkatachalam of Sama said over the phone.

“The law discriminates against the LGBTQ (lesbian, gay, bisexual, transgender and queer) community by not allowing parenthood through surrogacy. Divorcees, single people, people in live-in relationships are also excluded from the Bill,” Venkatachalam said. “The idea of ‘altruistic’, too, is misinformed. For starters, given patriarchal family structures, women are hardly better protected since they might be compelled or exploited within their family to undergo procedures they are not comfortable with,” she added.

Critics have also questioned the abandoning of the draft ART guidelines and banning—not strictly regulating—the practice of commercial surrogacy.

It remains to be seen if the law, if passed, will affect unethical practices surrounding surrogacy. And while regulation is welcome from all quarters, the dissenting Rajya Sabha and civil society members do raise some valid points.

Health articles in Firstpost are written by myUpchar.com, India’s first and biggest resource for verified medical information. At myUpchar, researchers and journalists work with doctors to bring you information on all things health. For more information, please watch our video on   Things To Consider Before Opting For IVF _._