Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy for another person or persons, who will become the newborn child's parent(s) after birth. Intended parents may seek a surrogacy arrangement when either pregnancy is medically impossible, pregnancy risks present an unacceptable danger to the mother's health or is a same sex couple's preferred method of having children.[1]

India is called the world capital of surrogacy. Surrogacy generates 2 Billion dollars annually in India. Despite India being a hub of surrogacy, there are no laws to regulate it.[2] However, The Supreme Court of India formally legalized commercial surrogacy in the landmark case Baby Manaji Yamanda v. Union of India.[3] . In this case of Baby Manji, a surrogacy agreement was entered into between the biological father and biological mother on one side and the surrogate mother on the other side. But subsequently in this case there were issues raised on the legality of the surrogacy agreement but the court allowed the same.

In this case the Court held:
Commercial surrogacy as a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and the related aspects as surrogacy agreement, the stakeholders or parties who may enter, and directed for enactment of a statutory law on the same. The supreme court admitted not only the void in law but also the irregularities taking place in the absence of law by calling surrogacy as money making racket.

In another case Jan Balaz v. Anand Municipality[4], the Gujarat High Court reiterated the apex court judgment legalizing commercial surrogacy in India and further elucidated that commercial surrogacy was held legal in India as there was no law prohibiting womb lending or surrogacy agreements. Both these judgments directed for the enactment of law on surrogacy in India.

To address this issue the ICMR drafted the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005[5]. Later, the draft Assisted Reproductive Technology Bill (the ART Bill) was formulated in 2008, reviewed and redrafted in 2010 and 2014 but was never passed as law. Consequently, a lot of notifications were passed in order to curb and address the issues arising due to lack of provisions regulating surrogacy.

The Law Commission recognized the fact that it is imperative to formulate such law in order to safeguard the interest of both the mother and the child and also to put a check on ART Clinics.

The Surrogacy (Regulation) Bill, 2016 (the 2016 Bill) was introduced in Lok Sabha on 21st November, 2016 and referred to the Department-related Parliamentary Standing Committee on Health and Family Welfare (the Standing Committee) by the Chairman, Rajya Sabha in consultation with the Speaker, Lok Sabha on the 12th January, 2017 for examination and report. The Standing Committee gave several recommendations broadly on:

1. Commercial surrogacy v. altruistic surrogacy.
2. Implications of surrogate being a close relative.
3. Inclusions of provision for gamete donations.
4. Regulation of abortion.

However, the 2016 Bill lapsed due to the dissolution of Lok Sabha and The Surrogacy (Regulation) Bill, 2019 (the Bill) is introduced to replace 2016 Bill. The Bill was passed in August 2019 in Lok Sabha.

The Statement of Objects and Reasons to the Bill reads as follows:

India has emerged as a surrogacy hub for couples from different countries for past few years. There have been reported incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes. Widespread condemnation of commercial surrogacy in India has been regularly reflected in different print and electronic media for last few years.

The Law Commission of India has, in its 228th Report, also recommended for prohibition of commercial surrogacy by enacting a suitable legislation. Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by the surrogacy clinics, which leads to rampant of commercial surrogacy and unethical practices in the said area of surrogacy.

In the light of the same, it had become necessary to enact a legislation to regulate surrogacy services in the country, to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.

The Bill proposes to regulate surrogacy in India by establishing National Surrogacy Board at Central Level, State Surrogacy Boards and Appropriate Authority in States and Union Territories[6]. More or less, the proposed legislation guarantees effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile Indian couples. However, there are certain clauses in the Bill which are arbitrary and unreasonable while considering the changes in present society also it fails to include recommendations given by the Standing Committee on 2016 Bill.

Clause By Clause Analysis Of The Bill

Clause 2 (b) and Clause 2 (f) - Definition of Altruistic Surrogacy and Commercial Surrogacy.

Clause 2 (b) reads as:
altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative[7], and;

Clause 2 (f) reads as:
commercial surrogacy means commercialization of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother[8].

As it was previously mentioned by the Standing Committee that economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner. Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary. It is an observation that if many impoverished women are able to provide their children with education, construct home, start a small business, etc. by resorting to surrogacy, there is no reason to take this away from them.

The Bill limits the circle of choosing a surrogate mother from within close relatives.[9] Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member. A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy. Altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism.

Also the Standing Committee in its report said[10] that:

The Committee is convinced that the altruistic surrogacy model as proposed in the Bill is based more on moralistic assumptions than on any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner. Altruistic surrogacy across the world means compensated surrogacy and a range of monetary payments to surrogate mothers are permitted as reasonable compensation. Even the Law Commission Report No. 228 of 2009 recommends reimbursement of all reasonable expenses to the surrogate mother. The Committee, therefore, recommends that the word altruistic in Clause 2 (b) of the Bill be replaced with the word compensated and appropriate modifications be incorporated in the said Clause and other relevant Clauses of the Bill with a view to harmonizing the Bill with the compensated surrogacy model.

This Bill overlooks childcare cost, traveling expenses, post-partum care expenses as it includes insurance and medical expense only this leaves a lot of burden on surrogate mother. It is unreasonable to expect such a thing from any person as surrogacy is not a one day job, it requires a lot of mental, physical and emotional strength. The proposed Bill has confined the expenses to medical and insurance coverage to surrogate mother during the process of surrogacy which has narrowed down the expenses incurred on the surrogate mother only. There is no scope for the other reasonable expenses.

The medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother are not the only expenses incurred during the surrogacy pregnancy. For any woman who is going through surrogacy, there is a certain cost and certain loss of health involved. Not only will she be absent from her work, but will also be away from her husband and would not be able to look after her own children.[11]

The Committee, therefore, recommends that surrogate mother should be adequately and reasonably compensated. The quantum of compensation should be fixed keeping in mind the surrogacy procedures and other necessary expenses related to and arising out of surrogacy process. The compensation should be commensurate with the lost wages for the duration of pregnancy, medical screening and psychological counseling of surrogate, child care support or psychological counseling for surrogate mother's own child/children, dietary supplements and medication, maternity clothing and post-delivery care. [12]

The Committee also recommends that:

In case the surrogate mother dies in the course of surrogate pregnancy or while giving birth to the surrogate child, additional compensation should be given to the kin of the surrogate mother.

The Bill rightly provides that no woman can become a surrogate more than once, this clause prevents women who are opting surrogacy due to poverty which in turn prevents it to become a profession.

Clause 2(g), Clause 2(p), and Clause 4 (iii) (c) - Definition of Couple, Infertility, and Eligibility Certificate for Intending Couple

The Bill limits the option of surrogacy to legally married Indian couples. Prohibiting widows, divorced women, live-in partners and LGBTQ from opting surrogacy as an option. This proves that the Bill is not in consonance with the present day modern social milieu that we live in and is too narrow in its understanding.

Now, even the Supreme Court has given legal sanctity to live in relationships in its judgment S. Khushboo vs Kanniammal & Anr[13] wherein the apex court put reliance on its previous judgment Lata Singh vs. State of U.P.[14] and observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence even though it may be perceived as immoral. A major girl is free to marry anyone she likes or live with anyone she likes.

This Bill fails to recognize the rights of LGBTQ, their right to life and personal liberty which is enshrined in Indian Constitution under Article 21, this gives right to every individual to do all such thing within the ambit of law. The Supreme Court in its land mark judgement of Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice[15] LGBT community is entitled to equal citizenship and protection under law, without discrimination. Hence, the Department should broad base the eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, divorced women, widows and LGBTQ. Appropriate alterations accordingly be made in Clause 2(g) and 4(iii) (c) of the Bill.

With regards to the clause II of 4 (iii) (c), which reads:

An eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely:
(II) The intending couple are married for at least five years and are Indian citizens;

A lot of people are getting married in their 30's and 40's and the requirement of five year wait would adversely affect the quality of their gametes and thus impair their chances of attaining parenthood through surrogacy. Besides, this time bar of five years plausibly violates the right to reproductive autonomy, and an individual's right to exercise his choice.[16]

The definition of infertility' in the Surrogacy (Regulation) Bill, 2016 is inconsistent with the definition given by WHO and also as in the ART (Regulation) Bill, 2014 which describe infertility as the inability to conceive after at least one year of unprotected coitus. The Committee is of the view that the fundamental right to reproduce to have a child is a part of a person's personal domain and fixing a period of five years will only cause breach of his/her reproductive rights and delayed or deferred parenthood. In India, infertility is considered a social stigma and the infertile couples go through a lot of agony and trauma due to infertility.

Since conception has many interplay functions, a five year time bar would add to the misery of already distressed intending couples. The five year waiting period is therefore arbitrary, discriminatory and without any definable logic.[17]

Clause 2(zc)-Definition of surrogacy

Clause 2 (zc) of the Bill deals with the definition of surrogacy and reads as under:

Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;

This definition of the word surrogacy is inconsistent with the definition given in ART Bill which reads as follows:

An arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of gametes belong to her or her husband, with the intention to carry it and hand over the child to the commissioning couple for whom she is acting as a surrogate.

The definition of surrogacy should be precise, explicit and descriptive with no scope of arbitrary interpretation. It does not mention pregnancy through the assisted reproductive technology either which is essentially a medical procedure by way of in-vitro fertilization or IVF. Also, there is no mention of origin of gamete either from the intending couples or gamete donors. The definition of surrogacy in the draft ART Bill is inclusive of all the relevant ingredients as required to understand the surrogacy in its entirety. Therefore, the definition given in clause 2 (zc) should be defined in consistence with ART Bill.

Clause 4 (iii) (b) (I), (II), (III) & (IV) which deals with the conditions to be fulfilled to be surrogate:

Clause (II) of which clearly specifies the surrogate to be a close relative of indenting couple. The Bill fails to define the word close relative' and hence because of which it remains ambiguous and vague.[18] There is no criteria to determine who is a close relative and one of the repercussions could be that the parties can create face certificates of close relatives in order to get the surgery done. Also, there are many socio- legal problematic issues with the surrogate mother being the close relative and genetically related to Intending couples which are as follows[19]:

1. In case of close family relative acting as surrogate mother, this may give scope for familial disputes concerning inheritance and property issues. There is also likelihood of custody disputes over the child.
2. The surrogate and couples being close relatives sharing the same ancestry, familial or kinship ties, there is greater likelihood of surrogate mother developing emotional attachment to the surrogate child thereby causing emotional wrangles surrounding the custody and parentage of child.
3. Altruistic surrogacy through a close relative has the potential of creating harsh psychological and emotional implications on child as well as on the parents and surrogate relative as the child shall grow up within the same family.
4. Being a close relative is also no guarantee for non-commercial surrogacy. By limiting surrogate mothers to close relatives', an attempt may be made to force women to become surrogate mother for their relatives.
5. Asking or coercing a close relative to be a surrogate mother will make the relations more complex, shaking apart the very foundation of Indian family.

As it was rightly pointed out be the standing committee:

The stakeholders and various other organizations that one cannot guarantee that the altruistic surrogate who is a close relative is not coerces into becoming a surrogate by just removing the commercial component of the practice. Not every member of a family is able to resist such demand. And hence, in such environment it can become even more exploitative. The Committee is convinced that limiting the practice of surrogacy to close relatives is not only non-pragmatic and unworkable but also has no connect with the object to stop exploitation of surrogates envisaged in the proposed legislation.

The Committee, therefore, recommends that this Clause of close relative should be removed to widen the scope of getting surrogate mothers from outside the close confines of the family of intending couple. In fact, both related and unrelated women should be permitted to become a surrogate.

Hence, it is impertinent to remove the word close relative' so as to widen the ambit of eligibility criteria. It was highly ignorant of the legislature to draft such Bill with similar redundancy as that of the 2016 Bill. [20]

Clause 3(vi): Abortion during the period of surrogacy

This clause reads as follows:

(vi) No surrogacy clinic, registered medical practitioner, gynecologist, pediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorization of the same by the appropriate authority concerned:
Provided that the authorization of the appropriate authority shall be subject to, and in compliance with, the provisions of the Medical Termination of Pregnancy Act, 1971;

This clause makes is mandatory to take additional permission from appropriate authority, if the surrogate mother wishes to opt for abortion. The Medical Termination of Pregnancy Act and Indian Penal Code provides safeguard for women seeking abortion i.e. right to seek abortion or medical termination of pregnancy is a statutory right of every Indian woman as per the Medical Termination of Pregnancy Act. It was therefore unreasonable to put a condition of authorization for same from appropriate authority before performing abortion.[21]

Therefore, there is no need to take an additional approval from authority, this requirement is unreasonable and arbitrary. This Bill fails to recognize or acknowledge the stake, insurance and repercussions on the intending couple in the event of an abortion.

Clause 35: Prohibition of commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy

The Bill prohibits and penalizes the exploitation of surrogate mother but the term exploitation of surrogate mother is not defined in the Bill, it remains ambiguous and vague. Hence, the Bill should include all such possible means of exploitation which are being declared as punishable offense.

Conclusion
Surrogacy industry in India is growing at a rapid pace. Hence, it is very important to regulate the same and make stringent laws in order to protect the rights of stakeholders. This Bill aims to safeguard the interest of the surrogate mother, child and intending couple. It also constitutes National Surrogacy Board, State Surrogacy Board and regulate the appointment of appropriate authorities.

However, there are some loopholes in the Bill which shall be addressed to make it more practical, for example the Bill overlooks the Insurance coverage for unborn child, including unforeseen contingencies and hence in my opinion the Bill is not comprehensive.

The department while making the law should refer ART Bill in order to make laws in congruence to the same because ART Bill is much more comprehensive and deals with the surrogacy procedures in a technical way which is more effective, logical and in conformity with the changes in society.

End-Notes:

1. One Hundred Second Report on The Surrogacy (Regulation) Bill, 2016, Department-Related Parliamentary Standing Committee on Health and Family Welfare, Rajya Sabha Secretariat, New Delhi, August, 2017.
2. ibid
3. (2008) 13 SCC 518.
4. AIR 2010 Guj 21.
5. National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, Indian Council of Medical Research, 2005, https://www.icmr.nic.in/sites/default/files/art/ART_Pdf.pdf.
6. The Surrogacy (Regulation) Bill, 2019.
7. Clause 2 (b), The Surrogacy (Regulation) Bill, 2019.
8. Clause 2 (f), The Surrogacy (Regulation) Bill, 2019.
9. The Wire, Surrogacy Bill Should Be Broadened, Include Compensation, Says Parliamentary Panel, 11 Aug, 2017. https://thewire.in/gender/surrogacy-bill-parliamentary-committee-report.
10. Supra Note 4.
11. The Wire, Surrogacy Bill Should Be Broadened, Include Compensation, Says Parliamentary Panel, 11 Aug, 2017. https://thewire.in/gender/surrogacy-bill-parliamentary-committee-report.
12. Ibid.
13. MANU/SC/0310/2010
14. (2006) 5 SCC 475.
15. Navtej Singh Johar&Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (Supreme Court of India).
16. The Times of India, 5-year wait for surrogacy too long for those who marry late: Parl panel, 13 Aug, 2017. https://timesofindia.indiatimes.com/india/5-year-wait-for-surrogacy-too-long-for-those-who-marry-late-parl-panel/articleshow/60042860.cms.
17. Ibid.
18. Supra Note 13.
19. Supra Note 4.
20. The Wire, Surrogacy Bill Should Be Broadened, Include Compensation, Says Parliamentary Panel, 11 Aug, 2017. https://thewire.in/gender/surrogacy-bill-parliamentary-committee-report.
21. Dr J Srinivas Rao, Dr. Matin Ahmad Khan, Surrogacy in India: Current Perspectives, 3, International Journal of Medical and Health Research, 5, 85-88, May 2017.