Surrogacy is a method of assisted reproduction where intended parents work with a gestational surrogate who will carry and care for their baby or babies until birth. Surrogacy was made legalized in India in the year 2002. According to a 2012 study by the Confederation of Indian Industry, the size of India’s surrogate motherhood industry was $2 billion a year. Another 2012 study backed by the United Nations estimated the economic scale of the Indian surrogacy industry to be 400 million dollars a year with more than 3,000 fertility clinics across the country.
Surrogacy Bill, 2019 is aimed at regulating the long amorphous medical industry in India through a National Surrogacy Board. This shall regulate all laws in India enacted by the bill. The central government shall notify the date of the commencement of the Act once it is enacted by Parliament leading to the formulation of the National Surrogacy Board across all States and Union Territories.
Surrogacy has grown enough to make commercial surrogacy into a full fledged industry in the medical sector. Rekha, a 31-year-old from Gujarat who has two children of her own and surrogates for other women, says, “My husband and family are happy as it brings substantial money. I‟ve even recommended my other family members to take up this option. Plus, I‟m quite happy that I can lend a hand to someone to complete their own family.” Surrogacy has been an option for a greater number of such women now. While we see a rosy picture on one hand, there are reports concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets involving intermediaries importing human embryos on the other.
Here comes the Anti-Surrogacy Bill, 2019. The bill legalizes surrogacy only on the condition that a surrogate mother will be a close relative to the mother and no financial exchanges shall take place other than medical expenses. Other than that, this surrogate mother should be a married woman, having at least one child of its own and should be between the ages of 25-35 years. Also, the bill states that any mother is allowed to surrogate only once in her lifetime. On the legal status of a surrogate child, the Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple.
Commercial surrogacy has have different laws in different parts of the World. While, it is legal in Ukraine , countries such as England and Australia allow only altruistic surrogacy. Similarly, there are certain disparities in laws among US states as well wherein California has surrogacy legalised whereas many other states recognize only altruistic surrogacy. In contrast, countries like Germany, Sweden, Norway, and Italy do not recognize any surrogacy agreements. Apart from this every year, couples from abroad are attracted to India by so-called surrogacy agencies because the cost of the whole procedure in India is as less as one-third of what it is in the United States and United Kingdom. Thus, India has become a favorite destination of fertility tourism around the world.
The Right to Life includes the right to reproductive autonomy, which includes the right to procreation and parenthood. The bill seeks to allow ethical altruistic surrogacy only to infertile Indian married couple between the age of 23-50 years and 26-55 years for female and male, respectively who possess ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by appropriate authorities. Thus, the state through this directly has a say in the personal lives of people especially their parenthood. It was and should never be for the State to decide the modes of parenthood. Constitutionally, the State cannot interfere in the prerogative of persons to have children, naturally or through surrogacy. But the new bill aimed at protecting women and ensuring children‟s rights have been derided by critics as a ‘near-ban‟ to childhood rights.
The surrogacy regulation bill according to me is insensitive and inconsiderate, to say the least. Surrogacy is a complex medical procedure with social, cultural, biological, and economic repercussions, and this bill does not do sufficient justice to all the dimensions of surrogacy. A ban is not the answer, a ban is never the answer and it is essential to bring the ongoing ban culture to an end. It is necessary to question the legitimacy of the bill and critically understand its medical as well as societal relevance.