critical analysis of the surrogacy bill

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CRITICAL ANALYSIS OF THE SURROGACY REGULATION BILL, 2016

Critical analysis of the Surrogacy Bill1

WHAT IS SURROGACY?



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INTRODUCTION

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The proposed draft surrogacy regulation Bill, 2016,passed by the health ministry, was cleared by the UnionCabinet on August 24, 2016 and is set to be introducedin the Parliament soon. Within a span of one week ofreleasing the draft, it received severe backlash, beingcited as discriminating and draconian.Although JP Nadda had mentioned that there is scopefor some improvements in the bill, he also said that theclauses relating to “exploitation of women andchildren” will not be touched



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Reasons behind the Bill

Commercial surrogacy in India was legalised in 2002 and this sowed the seeds for a booming surrogacy industry in India. The present value of the surrogacy market is US $ 2billion. Couples from all over the world, especial from countries where commercial surrogacy or surrogacy itself is banned (France, Germany) come to India for this.

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Anand in Gujarat is considered as a baby farm that provides surrogate mothers and all those services required for surrogacy. This agency has women who have been surrogate mothers for about 8 times in exchange for money. The agency costs between 10,000$ and 28,000$ for a complete package which is about one third of the cost in UK. But the surrogate mothers only get 25% of this.

In 2014, a single mother wanted to earn some money. So she went to an auto driver who was an agent of the agency in Anand and he hooked her up with them. She became a surrogate mother for a German couple.

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After deducting all the commissions, she finally received only 4% of the entire sum paid. This was one of the reasons for the proposition of the new bill.

Another reason is that the techniques used in India for surrogacy are not reliable. A woman in Gujarat, passed away while she was undergoing a procedure for egg donation.

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The main reason for the introduction of the bill is the case of Baby Manjhi Yamada v. UOI and following that the 228th Law commission report.

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Important features of the Bill

1) Either one of them must have proven infertility. 2) Egg donation is banned3) Only married Indian couple can participate4) Single, NRI, Live-in, Foreigners, Homogeneous

couples can’t.5) Couple must have been married at least for 5 years.6) Only altruistic surrogacy.7) Only a relative can be a surrogate mother.8) A woman can be a surrogate mother only once. 9) Female 23-55 and Male 26-55.10) Couples who already have a child can’t have a

surrogate child unless the first child is physically or mentally retarded.

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No pay and only once?

• *Limiting a woman’s surrogacy choice to only one time is in a large way limiting the income of those who

survive on this business. Again, it comes down to the issue of consent. If a woman willingly consents to

being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why

should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were

dependent on the same. The issue here seems to be that the woman is “exploited” for her body. And this

too, is a legitimate issue. Just as in the case of sex work, when a woman is coerced into the business

because she has no choice, and because she desperately needs the financial resources, it does not mean

that she has fully consented to the job. It means that she has not been provided, or is not able to find,

alternate employment to sustain herself. However, if she is consenting and is being paid the proper

amount, then this should not be an issue at all. In certain European countries, sex work is fully regulated

and sex workers have full constitutional rights, unlike in India. Similarly, surrogacy laws should be set

out in such a way that there is full consent of the woman in question. Here, instead of regulating the ways

and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea

entirely.

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ONLY A CLOSE RELATIVE

would you be willing to become a surrogate mother?O

*The necessity of only a relative being a surrogate mother limits the possibility of surrogacy to a very large extent, especially since most times, surrogacy becomes the very last option a couple chooses. It will be very difficult to find a relative who will be willing to be a surrogate mother. This might pave the way to force daughter-in-laws to become a surrogate mother for a couple in the matrimonial home against her will.

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Only one child. *Although it makes sense to not allow couples

who already have a baby to have a surrogate child, allowing a couple with a mentally or physically challenged child to go for surrogacy may result in neglect of the first child who actually needs more attention.

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Where is Article 14 in all this?

*The Bill is highly discriminatory and against the very tenets of “equality”, as it discriminates between married and unmarried couples, between heterosexual and homosexual couples, between single parents and double parents, between divorcee and non-divorcee, between foreign couples and Indian couples. The Supreme Court has considered live-in relationships that have been for a considerable duration to be marriage like and the DV Act also does something similar. Hence the Bill can be found to be a little archaic in its view. 11



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The Adoption laws have been broadened to include single parents in their ambit. But the 2016 bill leaves them out.

One of the most contentious points of the bill is its blatant ban on surrogacy rights of homosexual couples. This is the first time that the government’s transparent homophobia has come out in the open. Sushma Swaraj very clearly stated that surrogacy for homosexuals is against “Indian ethos”, although homosexuality has been constantly mentioned in various Indian texts. Now, even though this ban could be construed as

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DISSING THE QUEER COMMUNITY



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a mere following of the law (Section 377 against “unnatural” intercourse), this would only make sense if heterosexual couples also violating the section were denied surrogacy rights.

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Black market The bill imposes a blanket ban on commercial

surrogacy which is very similar to the Transplantation of Human organs Act, 1994 that imposes a ban on commercial organ donation. If surrogacy is banned, a black market will surely emerge where middle-men would reap the financial benefits and women would lose both income and access to adequate prenatal care just like in the case of Kidney donation.

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The age limit is 22 to 55 for women and 26 to 55 for men. Does this mean a couple in which the woman is 21 years old and the man is 25 years old can’t have a child? If they can get married in 18 and 21, why can’t they have a child?

Another issue that grabs our attention is the condition that the couple should have been married for a minimum of 5 years to opt for surrogacy. If a couple gets married at 30 and realize that one of them is infertile, will they have to wait till they turn 35 to have a kid?

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Age Barrier



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ConclusionThe bill seems to do more harm than good. Although

formulated to curb the exploitation of women and trafficking of children; again, it exhibits the general policy of a state banning or censoring an activity almost completely, instead of looking at ways to use laws to regulate and improve the situation. While most countries, especially in Europe, only allow altruistic surrogacy, surrogate mothers are not limited to relatives, and medical expenses are covered. It can be said that although India has not banned surrogacy completely (like Germany, France and Italy), the laws need to be re-looked so that they actually benefit surrogate mothers, prospective parents, and children born from surrogacy.

Pokemon Go and Right to Panorama 16



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Thank you..

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