prpri Commercial Surrogacy -Now Legally Prohibited!!!! Commercial Surrogacy -Now Legally Prohibited!!!!
ACS Kanika Kumar

Kanika KumarUnion Cabinet cleared the Surrogacy (Regulation) Bill, 2016, dated 24.08.2016, banning commercial surrogacy in India. It’s a draft bill which is yet to be passed by government.

The above named draft bill bans the following from eligibility of surrogacy:

  • foreigners,
  • homosexual couples,
  • people in live-in relationships and
  • single individuals

Following are Eligible for surrogacy.

  • making only childless
  • straight Indian couple married for a minimum of five years

Note: Eligible couples will have to turn to close relatives, but in case of altruistic surrogacy it is not necessary to be related by blood.

Altruistic surrogacy Means:

a practice whereby a woman agrees, for no financial gain, to become pregnant and bear a child for another person or persons to whom she intends to transfer the child’s care at, or shortly after, the child’s birth.

Brief History of the issues that arise out of Surrogacy.

maria-160949_640The surrogacy debate started in India in 2008, when two-week-old Baby Manji Yamada was left stateless after the commissioning parents in Japan divorced during the pregnancy and the commissioning mother refused to accept the baby. While the court granted custody to the baby’s grandmother.

In 2008, another case, on the citizenship of surrogate babies, led the Gujarat High Court to state that there is “extreme urgency to push through legislation” which addresses issues that arise out of surrogacy.

Subsequently, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.

Commissioning Parents Means:

One woman (host mother or surrogate mother) carries a child for another as the result of an agreement which is made before conception that the child should be handed over after birth. The couples wishing to have the child are called the commissioning couple.

Following are the Highlights to be viewed with regard to Surrogacy (Regulation) Bill, 2016:

  • The Bill also prohibits couples who already have biological or adopted children from commissioning babies through surrogacy.
  • The Bill approved on Wednesday will apply to the whole of India, except Jammu and Kashmir.
  • Complete stop to celebrities who are commissioning surrogate children like a hobby, despite having biological ones.
  • It mandates that women acting as surrogates can do so only once. And all Assisted Reproductive Technology (ART) clinics will be registered.

Key Aspects Of The Bill

The draft surrogacy Bill aims at:

  • Regulating commissioning of surrogacy in the country in a proper manner.
  • As per the 2009 Law Commission Report, the artificial reproduction treatment industry is Rs. 25,000 crore industry.
  • The Bill aims to prevent exploitation of women, especially those in rural and tribal areas.
  • The Bill promises to ensure parentage of children born out of surrogacy is legal and transparent.
  • The new Bill proposes complete ban on commercial surrogacy.
  • As per the Bill, only legally-wedded Indian couples can have children through surrogacy, provided at least one of them have been proven to have fertility-related issues.
  • Foreigners, even Overseas Indians, are barred from commissioning surrogacy.
  • A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses.
  • Unmarried couples, single parents, live-in partners and homosexuals cannot opt for surrogacy as per the new bill.
  • Surrogacy regulation board will be set-up at Central and State-level.

Hereunder are some Experts View:

The draft Bill bans renting a womb for money and allows it only if the woman is doing so for altruistic reasons, which surrogacy experts dubbed illogical and unreasonable.

The draft Bill is both draconian and unreasonable. It is a violation of the reproductive right of the surrogate mother, said Hari G Ramasubramanian, surrogacy law expert and founder of Indian Surrogacy Law Centre and Gift Life Egg bank, Chennai. He questioned: “How many people actually have someone who will be willing to be a surrogate.”

Mr. Ramasubramanian said the draft Bill even banned egg donation that would only ensure that a sizeable number of people seeking IVF treatment (In vitro fertilisation or IVF, is a process by which an egg is fertilised by sperm outside the body: would not be able to take it up now.

Conclusion: It aims at regulating commissioning of surrogacy in the country in a proper manner. Commercial Surrogacy should be banned. A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses.

Let’s hope this draft bill to be passed soon.

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July 2021