UPSC MAINS 2019 : Surrogacy regulation Bill

Surrogacy regulation Bill

Topic : Surrogacy regulation Bill

Topic in Syllabus: General Studies Paper 2: Indian Governance

 

Context:

Surrogacy regulation Bill

The Lok has passed the Surrogacy (Regulation) Bill, 2019 by a voice vote.  The Bill seeks to ban commercial surrogacy and provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of authorities for its regulation of practice and processes.

 

Back ground:

What is surrogacy?

  • Surrogacy is the practice where by one woman carries the child for anotherwith the intention that the child should be handed over after birth.
  • Such a surrogacy arrangement may be altruistic or commercialin nature.
    • Altruistic surrogacyinvolves an arrangement where the couple does not pay the surrogate mother any compensation other than the medical and insurance expenses related to the pregnancy.
    • Commercial surrogacy includes compensation (in cash or kind) paid to the surrogate mother, which exceeds the reasonable medical expenses associated with the pregnancy.

 

Need for regulation:

  • India has emerged as a surrogacy hub for couples from other countries and there have been reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets involving intermediaries importing human embryos and gametes.
  • The 228th report of the Law Commission of India has recommended prohibiting commercial surrogacy and allowing altruistic surrogacy by enacting suitable legislation.

 

Features of surrogacy regulation bill.

  • The bill seeks to ban commercial surrogacy.
  • The Bill aimed at ending the exploitation of women who are lending their womb for surrogacy, and protecting the rights of children born through this.
  • Constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice and process of surrogacy.
  • The Bill seeks to allow only altruistic surrogacyby infertile Indian couples from a “close relative”, while prohibiting foreigners, NRIs and PIOs from commissioningsurrogacy in the country.
  • Even singles, homosexuals and live-in couples cannot apply for surrogacy. 

 

Eligibility criteria for surrogacy

  • For intending couple:
    • The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
    • A certificate of essentiality will be issued upon fulfilment of the following conditions:
  • A certificate of proven infertility of one or both members of the intending couple from a District Medical Board
  • An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
  • Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
  • The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: 
  • The couple being Indian citizens and married for at least five years
  • Between 23 to 50 years old (wife) and 26 to 55 years old (husband);
  • They do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and
  • Other conditions that may be specified by regulations
  • Eligibility criteria for surrogate mother: 

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

  • A close relative of the intending couple;
  • A married woman having a child of her own;
  • 25 to 35 years old;
  • A surrogate only once in her lifetime; and
  • Possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

 

Appropriate authority
The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act

  • The functions of the appropriate authority include;
  • granting, suspending or cancelling registration of surrogacy clinics;
  • enforcing standards for surrogacy clinics;
  • investigating and taking action against breach of the provisions of the Bill;
  • recommending modifications to the rules and regulations.
  • Registration of surrogacy clinics
    Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority

    • Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
  • National and State Surrogacy Boards
    The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
  • Functions of the NSB include,

(i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

  • Parentage and abortion of surrogate child
    A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
  • This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971
  • Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb

 

Offences and penalties
The offences under the Bill include

  • undertaking or advertising commercial surrogacy;
  • exploiting the surrogate mother;
  • abandoning, exploiting or disowning a surrogate child;
  • selling or importing human embryo or gametes for surrogacy.
  • The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
  • The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

 

Concerns:

  • The Surrogacy (Regulation) Bill 2019 cements the ban on commercial surrogacy, but it fails to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child.
  • The bill passed has not addressed the cases like a women who is able to conceive but cannot carry full pregnancy.
  • The bill does not provide a definition of a ‘close relative’ leaving room for unwarranted manipulations and inclusions.
  • Just the removal of the commercial aspects in the current surrogacy arrangements does not remove the chances of exploitation. So the rights of surrogate mother and child born must comprehensively be formulated, along with that ART must be regulated thoroughly.

 

Sample Question

Discuss the provisions and challenges of surrogacy regulation bill 2019.

 


 

Surrogacy regulation Bill infograph