The Union Cabinet, chaired by Prime Minister Narendra Modi, has given its approval for moving official amendments to the ‘Surrogacy (Regulation) Bill, 2016’. The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by establishing National Surrogacy Board at the Central level and State Surrogacy Boards and Appropriate Authorities in the States and Union Territories.
The proposed legislation ensures effective regulation of surrogacy, prohibit commercial surrogacy and allow altruistic surrogacy to the needy Indian infertile couples
Once the Bill is enacted by the Parliament, the National Surrogacy Board will be constituted. The States and Union Territories shall constitute the State Surrogacy Board and State Appropriate Authorities within three months of the notification by the Central Government.
Highlights of the Bill
Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.
The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile. The surrogate mother has to be a close relative who has been married and has had a child of her own.
No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.
Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. These authorities will also regulate surrogacy clinics.
Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.
Key Issues and Analysis
The Bill permits surrogacy only for couples who cannot conceive a child. This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy. Further, it allows additional conditions to be prescribed by regulations. This may be excessive delegation of legislative powers.
The surrogate mother and the intending couple need eligibility certificates from the appropriate authority. The Bill does not specify a time limit within which such certificates will be granted. It also does not specify an appeal process in case the application is rejected.
The surrogate mother must be a ‘close relative’ of the intending couple. The Bill does not define the term ‘close relative’. Further, the surrogate mother (close relative) may donate her own egg for the pregnancy. This may lead to negative health consequences for the surrogate baby.
For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required. The Bill does not specify a time limit for granting such an approval. Further, the intending couple has no say in the consent to abort.