Lok Sabha passes 'historic' bill which bans commercial surrogacy; single parents, same-sex couples not entitled

The Lok Sabha on Wednesday passed the Surrogacy (Regulation) Bill 2016 that prohibits commercial surrogacy and allows close relatives to act as surrogates to needy infertile couples for "altruistic" reasons. The bill entitles only Indian citizens to avail surrogacy. Foreigners, NRIs and PIOs are not allowed to seek surrogacy in the country.

The proposed legislation was termed 'historic' by Health Minister JP Nadda. India had become a hub of commercial surrogacy and surrogate mothers also suffered from exploitation, he told the House. "The bill protects women from exploitation and ensures the rights of the child born through surrogacy. It has been a demand from all sections of society," he said. The bill proposes the complete ban on commercial surrogacy, but altruistic surrogacy will be permitted for needy infertile couple under strict regulation.

The bill was passed after an hour-long debate amid noisy protests by Congress and AIADMK members over various issues. Nadda said different sections of society, political parties, the Supreme Court and the Law Commission have spoken against commercial surrogacy and that the bill addresses these concerns.

Representational image. Reuters

Representational image. Reuters

Surrogacy refers to an arrangement wherein a couple commissions another woman (surrogate) to become pregnant, carry the pregnancy and give birth to a child or children.

Under this bill, homosexuals, single parents, and live-in couples are also not entitled for surrogacy. Also, couples who already have children will not be allowed to go for surrogacy, though they would be free to adopt a child under a separate law.

Though members of different parties, who spoke during the debate supported the bill, some, including Kakoli Ghosh Dastidar of the Trinamool Congress and NCP's Supriya Sule, exhorted the government to expand its scope.

Sule said the bill was good but not modern enough, while Dastidar said same-sex couples should also be allowed to have a child through surrogacy. She also called for stopping "fashion surrogacy", saying some celebrities go for it as they do not want their figures "destroyed".

Nadda said the aim of the bill was to stop commercial surrogacy but at the same time save families by allowing them to have children by using modern science. The bill proposes to regulate surrogacy by establishing appropriate authorities at the central level and in states and Union Territories (UTs), an official statement had said.

Once the bill is enacted by Parliament, the National Surrogacy Board will be constituted. States and UTs will constitute the state surrogacy boards and state appropriate authorities within three months of the notification by the Central government. While commercial surrogacy will be prohibited, including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfilment of certain conditions and for specific purposes.

The bill shall apply to all states, except Jammu and Kashmir, an official statement had earlier said. Noting that India is emerging as a "surrogacy hub" for couples from different countries, it said there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes.

The draft law has a provision for a jail term of up to 10 years and a fine of Rs 10 lakh for violations such as abandoning a child and choosing commercial surrogacy, reported Livemint.

History of the bill

The 228th report of the Law Commission had recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy by enacting a suitable legislation. The 'Surrogacy (Regulation) Bill, 2016' was introduced in the Lok Sabha on 21 November in 2016 and was referred to the Parliamentary Standing Committee on Health and Family Welfare in January 2017.

The Parliamentary Standing Committee held various meetings with stakeholders, Central government ministries and department, NGOs, medical professionals, lawyers, researchers, commissioning parents and surrogate mothers for holding discussions and to receive their suggestions. The 102nd report of the departmental-related Parliamentary Standing Committee on Health and Family Welfare on the bill was tabled in the Rajya Sabha and simultaneously in the Lok Sabha on 10 August, last year.

The panel had recommended there should be no discrimination against people of Indian-origin living abroad seeking to use surrogacy services in India. There is "no point" in restricting Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizen of India (OCI) from using surrogacy services, the panel's report, tabled in the Parliament had said.

While recommending that foreign nationals be kept out of the Surrogacy (Regulation) Bill, 2016, it advocated an appropriate mechanism for a complete background check of NRIs, PIOs and OCIs intending to use the services of surrogates for bearing a child on their behalf. The bill allows surrogacy only for legally married couples after five years of marriage and with a doctor's certificate stating that they are medically unfit to reproduce. Women within the age group of 23 to 50 years and men between 26 to 55 years will be eligible to go for surrogacy.

To check commercial exploitation and middlemen, the surrogate mother can only be a close relative, like a sister or sister-in-law who is married and has at least one healthy biological child. A woman can be a surrogate only once in her lifetime. The bill also has penal provision for misuse of surrogacy.

With inputs from PTI

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Updated Date: Dec 20, 2018 16:38:49 IST

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