Ban on commercial surrogacy; unmarried couples, homosexuals, NRIs barred: All you need to know
The bill proposes a complete ban on commercial surrogacy and allows only legally-wedded Indian couples (who have been married for five years) to opt for children through it.
The Union Cabinet on Wednesday, 24 August, gave its nod to the introduction of the Surrogacy (Regulation) Bill, 2016 in Parliament, seeking a bar on unmarried couples, single parents, live-in partners and homosexuals from opting for surrogacy.
This move is aimed at curbing unethical practices in the country, according to External Affairs Minister Sushma Swaraj, who said that the Bill comes at a time when India has emerged as a hub of commercial surrogacy for couples seeking children.
What is surrogacy?
Surrogacy or surrogate motherhood is a form of assisted reproductive technology that helps couples, who are unable to conceive, have a child. The process involves the services of a woman who agrees to carry a child and deliver the child for the couple. Apparently, five individuals can claim parenthood in this situation: the woman who donates eggs, the woman who carries the child, the woman who will raise the child, the man who donates the sperm and the man who will raise the child.
What is the Surrogacy (Regulation) Bill 2016?
The bill proposes a complete ban on commercial surrogacy and allows only legally-wedded Indian couples (who have been married for five years) to opt for children through it. It also seeks a bar on unmarried couples, single parents, live-in partners and homosexuals from opting for surrogacy.
Sushma Swaraj said that foreigners as well as NRIs and PIOs, who hold Overseas Citizens of India (OCI) cards, have been barred from opting for surrogacy. "Unmarried couples, single parents, live-in partners and homosexuals cannot opt for surrogacy as per the bill. Legally wedded couples who have been married for at least five years, can opt for surrogacy," she said.
Further, the bill has a provision for jail term upto 10 years, and a fine of Rs 10 lakhs for violations, such as abandoning the child and opting for commercial surrogacy.
Why did the bill emerge?
The government recently admitted that in the absence of a statutory mechanism to control the commissioning of surrogacy
at present, there have been cases of pregnancies by way of surrogacy — including in rural and tribal areas — leading to possible exploitation of women by unscrupulous elements.
Swaraj was of the view that the proposed bill will check exploitation of poor women, especially in the rural and tribal areas and prevent "womb trade" and she lamented that the method had become a "fashion" for couples, especially celebrities.
Addressing a press conference after the Union Cabinet approved the Surrogacy (Regulation) Bill, 2016, the minister said she feels "sad" to say that what had started in the name of "necessity" has today become a "fashion".
She referred to "big celebrities" (without naming them) who had opted for surrogacy as a trend. Reportedly, Shah Rukh Khan, Amir Khan and Tusshar Kapoor are some of the celebrities to have surrogate children. Kapoor is a single parent.
Who will be allowed surrogacy?
A woman seeking a surrogate child should between 23 and 50 years in age, and her husband should be between 26 and 55 years.
The woman wanting a child through this method will be the mother as per the proposed law. There is a provision under the measure for a contract to clear any ambiguity. A surrogate child will have equal right as any other biological or adopted child over property, Swaraj said.
Conditions and limitations
Couples going for surrogacy will also have to produce a certificate to prove that one of them is medically unfit to bear a child.
Only altruistic surrogacy will be allowed in a regulated form with some condition and only "close relatives" of couples seeking children will be allowed to be surrogate mothers. The surrogate mother should be married and have borne a healthy child. People already having one child cannot go for surrogacy.
A woman who offers her womb for the purpose, will be able to do so only once as per the bill.
Surrogacy clinics under the bill will have to maintain their record for 25 years to ensure that documents are made available in case of a legal dispute.
In the case of live-in partners, single parents, homosexuals, widows and those who don't have close relatives (who cannot opt for surrogacy), Swaraj said that adoption will be made available.
The government has now decided that the bill will be referred to Parliament's Standing Committee on Health and the new law will be notified 10 months after it is cleared by the two Houses to allow mothers who are already pregnant then to have a surrogate baby.
With inputs from PTI
Those opposing commercial surrogacy including the government seem to have an unstated, oblique objection in addition to the ones that have been voiced loud and clear like the legal issues bedevilling surrogacy commissioned by foreigners.
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