Overview of the Surrogacy (Regulation) Bill, 2019

Surrogacy finds its existence in the mythological history of India. Yashoda Maiya was the surrogate mother of Lord Krishna however the natural parents were Vasudeva and Devaki. Dhritarashtra was a father of hundred children but his wife was never their biological mother. The primaeval desire to have one’s own kin further sustained by the new technology and the sound financial position of couples, a new industry emerged commonly known as the reproductive tourism industry.

The root word for surrogacy is surrogate which derives its origin from Latin word i.e surrogates which means substitution. Generally, it connotes a woman goes for pregnancy which is generally for another woman for a lucrative benefit. The court considered the definition of surrogacy in K. Kalaiselvi vs Chennai Port Trust (2013) 3 MLJ 493 [1]

“Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child’s genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo.” In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

Overview of the Surrogacy (Regulation) Bill, 2019

The world’s second and India’s first IVF (in vitro fertilization) baby, Kanupriya alias Durga was born in Kolkata on October 3, 1978, about two months after the world’s first IVF boy, Louise Joy Brown born in Great on July 25, 1978. Since then the field of Assisted Reproductive Technology (ART) has developed rapidly. [2]

Surrogacy is mainly of four types, the K. Kalaiselvi’s case dealt with the concept of surrogacy in detail in paras10,11,12,13,14

10. In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic.[3]

11. In gestational surrogacy (also known as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e.g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier. [4]

12. Altruistic surrogacy is a situation where the surrogate receives no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).[5]

Overview of the Surrogacy (Regulation) Bill, 2019

13. surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile couples who can afford the cost involved or people who save and borrow in order to fulfil their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms.[6]

14. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a health condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy.[7]

The concept of Assisted Reproductive Technology(ART) methods developed as sometimes infertility may be doldrum in the well being of the families. As a woman is considered to be a good wife only when she becomes a child’s mother and even the masculinity of the male is at stake and the woman has to bear the consequences her fertility will only be doubted if there is no child in the family. Some authors put it as follows: The parents construct the child biologically, while the child constructs the parents socially. Surrogacy acts as a guard to save the couples. 

Overview of the Surrogacy (Regulation) Bill, 2019

The business of surrogacy has been widely spread in India since a long time as the cost of surrogacy is five to seven times less than the cost of surrogacy in abroad and India is often known as the surrogacy hub of the world. Often, in India, the surrogate mothers are from a poor background. There have been instances where the children have been abandoned by the surrogate mother themselves. The quest was there among the people for a bill to regulate the practice of commercial surrogacy in India.

The Surrogacy (Regulation) Bill was introduced by the Health Minister Dr Harshvardhan in July . The bill intends to constitute a National Surrogacy Board further empowering to establish bodies to control and regulate the practice of surrogacy and only allow the practice of altruistic surrogacy. Further, the other objectives of the act include to stop the exploitation of surrogate mothers and prevent the abandonment of children. However, some of the provisions of the surrogacy bill have been severely criticised. 

The bill imposes a blanket ban on the practice of commercial surrogacy and only allows the altruistic surrogacy and that too with the prior permission of the board. Further, the act has laid down proper procedures for the surrogacy. The classification has been drawn to allow selective couples only for the process of surrogacy. The couples in which both the members of the couple or either is suffering from proven infertility. The couple here as per the definition of the bill connotes a legally married Indian man and women above the age of 21 and 18 yrs respectively. The standard to determine infertility is 5 years as has been laid in the act. 

Two certificates are mainly required: certificate of essentiality and certificate of eligibility.

Overview of the Surrogacy (Regulation) Bill, 2019

A certificate of essentiality will be issued upon fulfilment of the following conditions (i) a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court; and (iii) insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.[8]

The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: (i) the couple being Indian citizens and married for at least five years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii) they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; and (iv) other conditions that may be specified by regulations.[9]

Further, some prerequisites have also been laid for who can be a surrogate mother, only a person who is a close relative of the intending couple is allowed to be a surrogate mother, but no such definition has been provided in the act as of the close relative. Another criterion that has been laid that only a married woman having a child of her own of age group 25 to 35 years shall be a surrogate mother. No mother who has already been a surrogate can become a surrogate mother again. Further, the act for the protection of the surrogate mother curbs the practice of sex selection for surrogacy and abortion without the consent of the surrogate mother and previous authorisation of the board/ regulatory authority.

[1.] K. Kalaiselvi vs Chennai Port Trust (2013) 3 MLJ 493 (Para 8)
[2.] 228th Law commission Report, 2009
[3.] K. Kalaiselvi vs Chennai Port Trust (2013) 3 MLJ 493 (Para 10)
[4.] Ibid (Para 11)
[5.] Ibid (Para 12)
[6.] Ibid (Para 13)
[7.] Ibid(Para 14)
[8.] https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019
[9.] https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019


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