Warnock Committee Report (1984) defines “Surrogacy is the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth”. There are two different types of surrogacy;
- Gestational surrogacy, and
- Traditional surrogacy.
In gestational surrogacy, an embryo is first created through in vitro fertilisation (IVF). The donors of the sperm and egg are usually the commissioning parents and the pregnancy is achieved by transferring this embryo to the uterus of the surrogate mother.
In traditional surrogacy, pregnancy of the surrogate mother is achieved naturally or artificially and the surrogate is genetically related to the offspring.
Both these types of surrogacy may be either altruistic i.e.unselfishly concerned for or devoted to the welfare of intending parents where the surrogate mother gets no financial assistance other than medical expenditure, insurance bill etc. or commercial where the carrier of the child is paid to rent her womb.
India is the first country in the world that legalised commercial surrogacy in 2002. Since then it has become a ‘surrogacy capital’ of the world with about 3000 surrogacy clinics and more than 2000 surrogate births annually. The estimated business volume is at Rs.900 Crore. In a bid to curb the menace of this ‘surrogacy industry’ the Union Cabinet cleared the Surrogacy (Regulation) Bill 2016. The Bill is having the following salient features:
- No commercial surrogacy is permitted.
- Indian couples married for at least five years and either one or both are suffering from infertility. The husband must be within the age of 26 to 55 years and the wife must be within 23 to 50 years.
- Only altruistic surrogacy is permitted.The surrogate mothers must be close relative and must have a child. No woman can act as surrogate mother more than once.
- The couple must not have any biological child except the child is mentally or physically challenged.
- The surrogate child must not be abandoned under any condition.
- Single people, live-in couples or homosexual partners are not allowed to have a baby through surrogacy.
- Foreigners, NRI and PIOs who hold OCI cards are not allowed to opt for surrogacy.
- National Surrogacy Board and State Surrogacy Boards will be set up and district authorities will also be involved.
- Exploitation of the surrogate mother, sell or abandonment of the child will lead to imprisonment of at least 10 years and fine up to 10 Lakh.
But the cabinet decision is not in consonance with the constitutional provisions. Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In many judgements, the Supreme Court of India has interpreted that the ‘life’ counts all those attributes which make every facet of life meaningful, worth living and complete. Imposing conditionality on surrogacy to discriminate on the basis of single parents, NRI couples, live-in couples, LGBTQ parents or age may not pass the test of equality. It is not the State to decide the nature of Right to procreation and parenthood which make the life meaningful. There should be a logical relation between object of the bill and the means of its implementation. A 2013 survey by the Centre for Social Research along with the WCD Ministry recommended explicitly that the law should allow LGBT, single parents and unmarried couples to opt for surrogate children.But the draft ART Bills of 2014 and 2016 ignored this recommendation.
Contrary to the above the Juvenile Justice (Care and protection of Children) Act, 2015 (JJ Act) already permits inter-country adoptions from India with the only bar of single males adopting a girl child.
The Government has justified banning of commercial surrogacy and foreigner participation to protect the misuse of surrogacy. But the ground reality may be quite different. Failure of the Government to administer ban on organ donations and sex determination indicate how effectively this commercial surrogacy ban can be implemented. The guidelines governing domestic altruistic surrogacy could be counterproductive. It may result in an underground unethical trade generating relatives and surrogates impregnated in India but shifted to a safe heaven. The government of India should enact a comprehensive law to ensure proper care of Indian surrogate mothers during surrogacy treatment. There should be a regulatory agency like CARA to judge suitability of the parents, welfare issues of the child and care of the surrogate mothers. Imposition of ban may not be a solution.
However, the Surrogacy (Regulation) bill 2016 has only been approved by the Cabinet. Now it has to be passed in both the houses before enactment as law.