The Surrogacy Bill, 2016 A Critical Analysis

By Adv. KANCHAN SHAH

advkanchan1502@gmail.com

Little souls find their way to you, whether they are from your womb or someone
elses

What is Surrogacy?

Surrogacy is a method or agreement whereby a woman agrees to carry a pregnancy

for another person or persons, who will become the new born child's parent(s) after
birth.

Intended parents may seek a surrogacy arrangement when either pregnancy is

medically impossible, pregnancy risks present an unacceptable danger to the
mother's health or is a same sex couple's preferred method of having children.
Monetary compensation may or may not be involved in these arrangements. If the
surrogate receives money for the surrogacy the arrangement is considered
commercial surrogacy, if she receives no compensation beyond reimbursement of
medical and other reasonable expenses it is referred to as altruistic.

The Different Kinds of Surrogacy

Traditional Surrogacy

When using traditional surrogacy, the surrogate acts as both the egg donor and as
the actual surrogate for the embryo, and she is impregnated using a process known
as intrauterine insemination, or IUI.

In this IUI procedure, the doctor will transfer sperm that is taken from the biological
father and will subsequently transfer that sperm into the surrogate's uterus so that
fertilization may take place naturally.

Therefore, with traditional surrogacy, the surrogate is also the biological mother of
the child. This type of surrogacy is typically only used if the biological mother's egg
and/or the biological father's sperm are unable to be used.
Gestational Surrogacy

With gestational surrogacy, the surrogate's eggs are not used at all. Therefore, the
child will not be related to the surrogate biologically. Using the gestational type of
surrogacy, the embryo is actually created by using both the biological father's sperm
and the biological mother's egg through a process called in vitro fertilization.

It is not until after the biological mother's egg is fertilized that the embryo is
transferred to the uterus of the surrogate using the process of in vitro fertilization.
In most cases, it will take between three and five days for the embryos to develop in
the laboratory prior to transferring them to the surrogate. Then, once the embryo
has successfully been placed into the surrogate's uterus, the surrogate will carry the
embryo through the pregnancy term until its birth.

The rate of success when using in vitro fertilization will depend upon several factors
such as the age and health of the biological mother who is providing the eggs.
Interestingly, however, in many cases, the rates of pregnancy are actually higher
when using eggs that are taken from biological mothers who are otherwise infertile
versus when eggs are taken from fertile women.

The Surrogacy (Regulation) Bill, 2016

History

India legalised commercial surrogacy in the year 2002, which gave rise to a booming
industry of foreign surrogacy requirements and fertility tourism so much so that
commercial surrogacy was banned in the year 2015.

The debate began in 2008 when a Japanese doctor couple commissioned a baby in a
small town in Gujarat. The surrogate mother gave birth to a healthy baby girl but by
then the Japanese couple had separated leaving the baby both parentless and
stateless, caught between the legal systems of two countries. The child is now with
her grandmother in Japan but has not received her citizenship as surrogacy is
banned in Japan.

In 2012, an Australian couple who had twins by surrogacy, arbitrarily rejected one
and took home the other.

A single mother of two from Chennai decided to become a surrogate mother in the
hope that the payment would help her start a shop near her house. She delivered a
healthy child, but her hopes bore little fruit for herself. She received only about
Rs.75,000, with an auto rickshaw driver who served as a middleman, taking a 50 per
cent cut. After repaying the loans, she did not have enough money.
On January 29, 2014, 26-year-old Yuma Sherpa died in the aftermath of a surgical
procedure to harvest eggs from her body, as part of the egg donation programme of
a private clinic based in New Delhi.

These incidents bring to light the disregard and abuse of the surrogate mother and
the child which have led to a number of public interest litigations in the Supreme
Court with a view to prohibit commercial surrogacy and permit altruistic surrogacy
to needy Indian Citizens.

Salient Features of the Bill

1) Surrogacy will not be allowed for:

Homosexual couples
Single parents
Couples in live-in relationships
Foreigners
Couples with children
Attempts at commercial surrogacy
2) Couples should be married for at least 5 years.
3) Either one of couple must have proven infertility.
4) Only Indian citizens; NRIs are also not included.
5) Age of couple: 23-50 for females and 26-55 for males.
6) Women can be surrogates only once and a married couple can only have one
surrogate child.
7) The couple should employ an altruistic relative, i.e. the surrogate mother
should be a relative who is sympathetic to the situation.
8) Egg donation is banned.
9) Surrogacy regulation board will be set-up at Central and State-level.

The Surrogacy Bill aims at

With the approval of the draft Surrogacy Bill last week, the Union Cabinet hopes to
prevent the exploitation of women who, in exchange for a fee, act as surrogate
mothers and rent their womb out. By legalising surrogacy the government has
rightly moved to pull the issue out of the grey area in which it has so far been.

The Bill may do more harm than good

By imposing a ban on commercial surrogacy, the Bill might do more harm to women
than was previously done. The demand for surrogacy is not going to all of a sudden
vanish and the proposed Bill will only result in the creation of an illegal market that
might make surrogate mothers more vulnerable to exploitation and without any
avenues for legal recourse when contracts are broken.
Furthermore, the Bill seems to be in contravention to Article 14 of the Constitution,
which states, The states shall not deny to any person equality before the law or
equal protection of the laws within the territory of India. By placing restrictions
on the right to have a surrogate child such that it is accorded to heterosexual
couples alone, the government has negated the equality that the Constitution
guarantees to single parents and homosexuals. Moreover, as per a Supreme Court
ruling, live-in relationships are on a par with marriage and children born out of long-
standing live-in relationships are legitimate. By limiting the option of surrogacy to
legally married couples, the government is countering the acceptability of live-in
relationships and setting a wrong precedent. The Government also seems to be
plunging into the impossible task of data collection, in an attempt to regulate, who
can apply for surrogacy and who can be a surrogate mother.

According to the draft Bill, only a blood relative aged 25 to 35 years can become a
surrogate. The woman also has to be married and should have a child of her own.
There are so many limitations in the Bill that surrogacy will practically disappear
when it comes into place, forcing intending parents to go abroad for the procedure.
But, not many couples will be able to afford the expenses of such a procedure in a
foreign country. Moreover, How many of your blood relatives will opt to carry out
a pregnancy for you? Especially in the age group of 23 to 35?

The draft Bill does not cover categories other than married Indian couples like single
women or men, gay or lesbian couples, or couples in a live-in relationship. The
window of altruistic surrogacy is open only for childless Indian married couple.
The Bill also does not allow married couple, who have children, adopted or
surrogate or biological, to have children via surrogacy.

Finally, as per the Bill, commissioning parents will only be allowed to meet medical
expenses of their altruistic surrogate mothers; no other payments can be made.
Take a pause the Government does not seem to realise what it means for a women
in the sphere of reproduction. Endorsing altruistic surrogacy over its commercial
avatar is a formal declaration that women are obliged to be (reproductive) gift-
givers, and need no compensation for loss of livelihood and the immense emotional
and bodily labour of gestation involved in surrogacy. And what if a close female
relative, a sister or a sister-in-law does not want to be selfless? Will there be no
shaming or penalty for that? Can we really convince ourselves that the coercion of a
contract or the inducement of money is greater than the coercion of (patriarchal)
family ties, especially in a country like ours?

What the Bill should do?

If the intent of the law is to protect surrogate mothers and children, then it must
provide a legal framework that restricts the exploitation of surrogates and their
children, and penalise those who do not honour contracts. The government should
ensure that the surrogates are properly counselled about the medical and economic
implications of surrogacy. It should also ensure that all surrogacy contracts must
mandatorily cover the medical care, hygiene, and nourishment of the surrogates
not just during the pregnancy but also in the post-partum period. Further, it should
act to remove any information asymmetry that encourages the role of middlemen
and puts the surrogates at the risk of being cheated. Surrogate mothers are workers
and not wombs. Denying Indian women the choice of voluntarily having surrogate
babies as a means to alternate economic opportunities seems out rightly misplaced.
Our concerns about inequality and exploitation should push us to demand a
framework for the protection of the surrogate mothers, and not a ban on the
activity involved. We must recognise that while some women are coerced into
surrogacy by their families and brokers, others weigh out their options and
negotiate with their families in order to participate in this industry. The Surrogacy
Bill as it is, would push this industry underground, or shift it to another country,
increasing the vulnerability of women even more.

Think Adoption

Adoption is an underutilised option that can not only give happiness to a childless
couple but also provide a home and a future for an orphan child. While adoption is
another method of making a family, the choice of having ones own child through
surrogacy or adopting should be left to the parent(s) to be. External Affairs Minister
Sushma Swaraj also said that in the absence of close relatives, couple are free to
adopt. Why this selective imposition of the morality of adoption on only those who
do not fit the heteronormative ethics of the state?

Date: 20th April 2017