What is the Surrogacy Bill and What Happens If it is Passed

When the Surrogacy (Regulation) Bill, 2019 was introduced in the Rajya Sabha, Health Minister Harsh Vardhan termed it a 'game-changer'. It is, after all, the first time that surrogacy is being aimed to be regulated in the country.

The surrogacy bill proposes a complete ban on commercial surrogacy – where the procedure is undertaken for monetary gain – but allows altruistic surrogacy, which involves no monetary compensation to the surrogate mother other than medical expenses and insurance coverage during the pregnancy. It says that no money can be paid except “the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother”. The surrogate must be a “close relative” of the couple.

What Does the Bill Entail?

The bill bans commercial surrogacy and the sale or import of human embryo for the purpose of surrogacy. It proposes mandatory registration of ‘surrogacy clinics’ -- those conducting the procedure in any form.

The bill has warranted ‘eligibility criteria’ for the surrogate mother as well as for the intending couple.

The couple must have a ‘certificate of essentiality’ and from the concerned authority which would ensure that the couple is infertile, give them the custody of the surrogate child, and cover medical expenses of the surrogate mother.

For a couple to be able to adopt, they have to be Indian citizens and married for at least five years – the wife belonging to an age group of 23 to 50 years and the husband belonging to age group of 26 to 55 years.

In addition, the surrogate mother needs to be – i) a close relative of the intending couple; ii) a married woman having a child of her own; iii) 25 to 35 years old; iv) a surrogate only once in her lifetime; and v) possess a certificate of medical and psychological fitness for surrogacy. Further, the surrogate mother cannot provide her own gametes for surrogacy.

Contravention of the bill can invite imprisonment up to 10 years and fine up to Rs 10 lakh.

Activists and experts have argued that the bill has several potential blind spots, including the mandate that only "close relatives" can become surrogate mothers, which doesn't take into account the patriarchal nature of many family relations in the country and the mandate that only a man and women, married for five years, can commission surrogates. This, experts, pointed out, discriminated against not just homosexual marriages, but also those who marry late and couples in live-in relationships.

Meanwhile, the opposition, on Wednesday, asked the government to come out with the definition of “close relative” who can be a surrogate mother and suggested that the “changing reality” be included in the Surrogacy Bill, 2019, and single parents, trans-genders and live-in couples, too, be included in the ambit of commissioning parents.

Congress’s Jairam Ramesh said that the government should get an amended bill passed after considering the suggestions of the members. He also suggested that the bill should have come after the Assisted Reproductive Technology bill as the government was “dealing with surrogacy but not with the technology of surrogacy”.

If the bill is passed in its current state, what happens?

1. If an Indian woman or man is married to a foreign citizen not residing in India, they will not be able to have surrogacy. The bill entails that the couple is Indian citizens.

2. Couples who are not married cannot avail surrogacy — this means widows, divorcees, single parents, live-in partners, and homosexual couples are completely left out.

3. Many experts argue that the “close relative” clause for surrogate mother could lead to coercion and further exploitation of women due to the patriarchal nature of the Indian family system. It may even lead to domestic violence. The definition of 'close relative' also remains unclear. SP leader Ram Gopal Yadav had said that the close relative clause for choosing a surrogate can lead to property disputes later on and other related issues in a family.

4. Experts also argue that the Bill is "inflexible" and privileged an "archaic family system" that is not in sync with present reality. The parliamentary committee, for instance, that analysed the bill had opposed an outright ban, arguing that the bill in the present form was "moralistic" and robbed women of agency.

5. A lot of activists also pointed out that five years is too long a term for couples to be allowed to have surrogacy. They point out that couples who marry at a later age or perhaps are married more than once will have difficulty with this clause.

6. Congress MP MV Rajeev Gowda had disagreed with the clause that demands the couple to certified as ‘infertile’. Gowda said, "The minister [Harsh Vardhan] himself is a doctor and knows that there are reasons proven, which are beyond infertility such as absence of a normal uterus, recurrent miscarriage etc, where it is unsafe for a woman to bear a child."