The Surrogacy (Regulation) Bill, 2016

Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child.

The intending couple must be Indian citizens and married for at least five years with at least one of them being infertile.  The surrogate mother has to be a close relative who has been married and has had a child of her own.

No payment other than reasonable medical expenses can be made to the surrogate mother. The surrogate child will be deemed to be the biological child of the intending couple.

Central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother.  These authorities will also regulate surrogacy clinics.

Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to Rs 10 lakh.

Key Issues and Analysis

  • The Bill permits surrogacy only for couples who cannot conceive a child.  This procedure is not allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
  • The Bill specifies eligibility conditions that need to be fulfilled by the intending couple in order to commission surrogacy.  Further, it allows additional conditions to be prescribed by regulations.  This may be an excessive delegation of legislative powers.
  • The surrogate mother and the intending couple need eligibility certificates from the appropriate authority.  The Bill does not specify a time limit within which such certificates will be granted.   It also does not specify an appeal process in case the application is rejected.
  • The surrogate mother must be a ‘close relative’ of the intending couple.  The Bill does not define the term ‘close relative’.  Further, the surrogate mother (a close relative) may donate her own egg for the pregnancy.  This may lead to negative health consequences for the surrogate baby.
  • For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required.  The Bill does not specify a time limit for granting such approval.  Further, the intending couple has no say in the consent to abort.
  • Definition of ‘infertility’ restricted to failure to conceive
  • Under the Bill, ‘infertility’ is a condition that has to be proven by an intending couple, in order to be eligible to commission a surrogacy procedure.  The Bill defines infertility as the inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception.  This definition does not cover all cases in which a couple is unable to bear a child.
  • For example, there may be medical conditions where the woman may conceive but is unable to carry a child through the period of the pregnancy, i.e., the period of nine months following the conception.  This includes cases where an intending mother may be able to conceive a child but may have multiple miscarriages that result in her inability to bear a child.  There are also other medical conditions like multiple fibroids in the uterus, hypertension, and diabetes that affect successful pregnancies.[6]  Such persons will not be covered under the definition of ‘infertility’ proposed in the Bill and therefore will not be eligible to undertake altruistic surrogacy.
  • In other countries like Netherlands, South Africa and Greece, to be eligible for altruistic surrogacy, the medical conditions that permit altruistic surrogacy are broader (for a detailed comparison, see Table 1, page 6).  These include, in addition to the inability to conceive, other medical conditions that affect the intending mother’s ability to give birth.
  •  ‘Close relative’ not defined
  • The Bill specifies various conditions that need to be fulfilled by a surrogate mother in order to be eligible for a surrogacy procedure.  Upon fulfilling these conditions, the surrogate mother may obtain an eligibility certificate from the appropriate authority.  One of the conditions to be proved is that the surrogate mother is a ‘close relative’ of the intending couple who commission the surrogacy.  However, the Bill does not specify who will be a ‘close relative’.
  • Some other laws define terms such as ‘relative’ or ‘near relative’.  For example, the Transplantation of Human Organs and Tissues Act, 1994 specifies that a living donor has to be a ‘near relative’.  It defines a ‘near relative’ to include spouse, son, daughter, father, mother, brother or sister.  The Companies Act, 2013 defines a ‘relative’ as (i) members of a Hindu Undivided Family; (ii) husband and wife; or (iii) other relations prescribed under the Act.
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