The change in Surrogacy Law in India from 2008 to 2020

This article on the change in Surrogacy law in India from 2008 to 2020 talks about how the concept of surrogacy has evolved in India and when our legislators considered it necessary to codify laws for surrogacy. This article will also enlighten the reader on the current position and amended provisions of the surrogacy (Regulation) bill 2020.

Parenthood is one of the most enriching and fulfilling experiences in a person’s life but for some people, having a child of their own cannot be possible due to various biological reasons. Surrogacy is one way to provide such people an opportunity to have a child.

What is surrogacy?

It is a process in which another woman can and agrees to carry a baby for another person. In simple words, she provides her womb for the growth of another person’s baby to hand over the child after the birth to the intending couple. It is also known as ‘contract pregnancy’ as there is a legal agreement with a woman to give birth to a child and give all the parenting rights to the intending parents.’

Types of Surrogacy

Gestational surrogacy	Traditional surrogacy (natural surrogacy)
1. The genetic material from the egg of the intended mother or the egg donor is combined through Invitro fertilization with the sperm of the intended father or the sperm donor to create an embryo. This embryo is then inserted in the womb of the surrogate.	1. The surrogate used her egg to become pregnant, which is fertilized by the intended father. This is done using intrauterine insemination or IVF .
2. The surrogate does not have a genetic relationship with the embryo	2. The surrogate has a genetic relationship with the embryo.

History of surrogacy laws in India

India was quite famous for surrogacy due to lesser prices for surrogates and no regulations and was known to be the “Surrogacy capital” of the world. The process became famous in India with the birth of the world’s second and India’s First IVF baby Kanupriya in Kolkata in 1978. It started long back but still, there were no codified laws for the same. However, In 2002 commercial surrogacy became legal in India, still, the legislators didn’t put efforts to make a codified law for surrogacy till 2008, and thus, before that it was carried on without any statutory regulatory mechanism.

There was an urgent need for surrogacy laws as any such practice without any statutory backing and proper regulation can cause socio-legal problems. The most common issues arising out of the practice of surrogacy without any regulations are:

• The surrogates were being subjected to unethical treatment, poor living conditions, and exploitation.
• The Surrogates only get a smaller portion of the hefty fees from the surrogacy agencies, of what they received from the intended parents.
• They were forced to continue being surrogates due to Poverty and lack of education and they continued to be used as baby-making machines by these agencies for money-making.
• This continued practice of surrogacy deteriorated their physical and mental health.

In 2005, the Indian Council for Medical Research drafted some guidelines for surrogacy but it lacked legal backing and thus surrogacy continued without any proper law in place for it.

Baby Manji Yamada v. Union of India[I]: The case that spurred the Indian Government to enact surrogacy laws.

This case was the first surrogacy case decided by the Supreme Court and it raised a need to bring a law to regulate the existing surrogacy industry in India. Baby Manji was born to Japanese biological parents who came to Anand, looking for surrogates. They have undergone gestational surrogacy. But her biological parents soon developed marital problems and got divorced and her mother left for Japan before her birth. The existing laws did not cover such a situation and the baby’s intended father cannot adopt her because he was divorced and a single father cannot adopt due to India’s Guardian and Wards Act, 1890.

The Supreme Court in a short and hurried judgment failed to undertake a detailed analysis of the surrogacy contract itself as well as the facts that lead to the case and delegated the responsibility on the National Commission Protection of Child Rights to decide on the legality of surrogacy.

The Assisted Reproductive Technology (Regulation) Bill, 2008 was formulated during the above judgment but it never tabled before the parliament. After this, the law commission also recommended the need for surrogacy laws in its 228^th report “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As well As Rights and Obligations of Parties to a Surrogacy”. After its recommendation the Assisted Reproductive Technology (Regulation) Bill, 2010 was drafted which contains provisions regarding the regulation of surrogacy clinics, rights of intended parents, surrogates, and children, but it was silent about various aspects relating to public policy[ii]. Then again in 2013 similar laws were drafted and presented before the parliament but neither of them gets the approval due to hurried draftsmanship.

Again in 2016 the Surrogacy (Regulation) Bill was passed by the Lok Sabha but was not introduced in the Rajya sabha. Subsequently, the Bill of 2016 in the same form was re-introduced in the Lok Sabha as Surrogacy (Regulation) Bill, 2019 by the Minister of Health and Family Welfare, Dr. Harsh Vardhan on July 15, 2019, and was passed on August 5, 2019.

Important changes brought by the Surrogacy Bill, 2019

• The Bill only allows altruistic surrogacy and prohibited commercial surrogacy. In Altruistic surrogacy, there are no monetary expenses other than the medical expenses and the insurance coverage of the mother during pregnancy.

Commercial surrogacy on the other hand includes a financial benefit or reward exceeding the basic medical expenses and insurance

• Surrogacy is permitted when it is for intending couples who suffer from proven infertility and not for producing children for sale, prostitution, or other forms of exploitation; and for any condition or disease-specific through regulations.
• Though there is no restriction for Unmarried persons, persons in live-in relationships, and LGBTQ couples to adopt a child, such persons’ are excluded to have a child through surrogacy.
• The 2008 bill allowed foreign nationals to avail themselves surrogacy services in India, then the 2014 bill put restrictions on such services. In the 2019 bill, Foreign nationals are restricted to opt for surrogacy in India to curb the unethical practices surrounding commercial surrogacy.
• A ‘certificate of essentiality’ issued by the appropriate authority upon fulfilment of the following conditions:(i) one or both members of the intending couple must obtain a certificate of proven infertility from a District Medical Board; (ii) an order passed by a Magistrate’s court of parentage and custody of the surrogate child; and (iii) insurance coverage for 16 months covering postpartum delivery complications for the surrogate.
• A ‘certificate of eligibility issued by the appropriate authority upon fulfilment of the following conditions: (i) the couple are required to be Indian citizens and married for at least five years; (ii) Wife needs to be between 23 to 50 years old and the husband should be between 26 to 55 years old; (iii) they do not have any biological, adopted or surrogate surviving child; 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.

To obtain a certificate of eligibility from the appropriate authority, The surrogate mother has to be a 25 to 35 years old married woman having a child of her own and must be closely related to the couple. She must possess a certificate of medical and psychological fitness for surrogacy and has been a surrogate only once in her lifetime. Further, she cannot provide her gametes for surrogacy.

• The appropriate authorities shall be appointed within 90 days of the Bill becoming an Act by the central and state governments. The appropriate authority would be responsible for (i)granting, suspending, or canceling the registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii)investigating and taking action against breach of the provisions of the Bill;(iv) recommending modifications to the rules and regulations.[iii]
• The clinics to undertake surrogacy are required to be registered by the authority within 60 days from the date of appointment of the appropriate authority.
• There is a provision for having the National Surrogacy Board at the central level and the State Surrogacy Boards at the state level. The NSB is required to advise the Central government on policy matters relating to surrogacy and for laying down the code of conduct of surrogacy clinics. It will also supervise the functioning of the SSBs
• After the embryo is implanted in the womb of the surrogate she cannot withdraw from surrogacy. The Child born to the surrogate is regarded as the biological child of the intending couple. Written consent of the surrogate mother and the authorization in compliance with the Medical Termination of Pregnancy Act, is required to abort such child.
• The offenses under the Bill include: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting, or disowning a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy. The penalty for such offenses is imprisonment up to 10 years and a fine of up to 10 lakh rupees. There are other ranges of offenses and penalties in the bill.[iv]

Major Defects of the 2019 Bill

The 2019 bill has two major defects; First, it excludes single persons and LGBTQ people from seeking surrogacy services, which violates Article 14 of the Constitution of India. Article 14 permits the classification of persons, objects by the legislature to achieve specific ends but does not allow class legislation. The classification should be founded on intelligible differentia and there must be nexus between the classification and the object set to achieve. The Act must not be against the principles of natural justice i.e. it must be fair, just and reasonable, and not arbitrary.

The primary purpose of the Bill of 2019 is to prevent unethical practices emerging out of the surrogacy services in India. Disallowing surrogacy rights to others and allowing it to only a married couple has no nexus with this object. Therefore, such a provision is unconstitutional.

Any person’s marital status, sexual orientation should not come in between the joy of having a child plus it does not mean that such people are less deserving or cannot be good parents. Sometimes the married couple proves to be bad parents. It all depends on the Individual personalities of a person.

The second defect is the condition that the surrogate mother should be a close relative which is not defined in the act as how close she is required to be associated with the couple to become a surrogate She is also required to be a 25 to 35 years old married woman ( at least for five years ) having a child of her own. These conditions would create difficulty for the intending couple to find an appropriate surrogate. Further convincing a close relative is another task. Both Family and friends should be allowed to become surrogates. This will give the couple more options and make it easy for them to find a surrogate.

The 2019 Bill was introduced in Rajya Sabha on November 6, 2019, where the provisions were debated after that the bill has been referred to a 23 member Select Committee of Rajya Sabha. The committee recommended various changes in the bill.

The Surrogacy (Regulation) Bill, 2020 was introduced on February 26, 2020, in the Lok Sabha by the Ministry of Health and Family Welfare.

Changes in the 2019 bill on the recommendations of the Select Committee of Rajya Sabha

• It allows any “willing” woman to be a surrogate mother Thus, the first defect of the 2019 bill is resolved that only a close relative of the couple can be a surrogate mother.
• The Bill completely bans commercial surrogacy. It restricts altruistic surrogacy to married infertile Indian couples only. Further, the ban on overseas Indians, foreigners, unmarried couples, live-in partners, and gay couples is the same as before. Thus, the second defect is still present but there is a major change as this bill allows Divorced women and widows of age between 35-45 years to opt for surrogacy.
• The period of proven infertility has been reduced to one year instead of five years as five years is a very long time for a couple to wait for having a child through surrogacy.
• Earlier version 16 months insurance coverage for surrogate mothers has been increased to 36 months.
• The provision of obtaining the certificate of essentiality and certificate of eligibility by the couple from the appropriate authority is kept mandatory. There were contrasting views of the committee members on the provision to obtain the certificate of infertility from the district medical board as it can be humiliating and will violate the person’s right to privacy. Though it is not removed from the 2020 bill.
• The intending couples cannot abandon the child born out of surrogacy under any condition. The newborn child shall be entitled to all rights and privileges that are available to a natural child and no sex selection can be done in this process.
• Infertility is defined in the 2019 bill as “the inability to conceive after five years of unprotected coitus or other proven medical condition preventing a couple from conception”[v] The person can have certain medical conditions like absent or abnormal uterus, irreversible damage, or removal of the uterus due to cancer, etc. or where it has been medically proven that surrogacy is the only option left with the couple if they wish to have a child of their own. Thus, the definition of Infertility u/s 2(p) of The Surrogacy (Regulation) Bill 2019 was omitted and Section 4(a) of the 2019 bill was amended to read “when an intending couple has a “medical indication necessitating gestational surrogacy” as the condition precedent in the 2020 bill.[vi]
• The surrogacy clinics are required to have a mandatory registration with the appropriate authority.
• The committee recommended that the Assisted reproductive technologies (Regulation) Bill, which was awaiting cabinet approval, may be taken up before the surrogacy (Regulation) Bill, 2020 as it deals with the technical. Scientific ad medical aspects, including the storage of embryos, gametes, etc. as contained in the surrogacy bill.

Conclusion

The surrogacy (Regulation) Bill,2020 is the need of the hour and is one of the progressive legislation yet to be passed in India but it still discriminates against unmarried persons and LGBTQ community which can prevent such people to benefit from such important legislation. This bill seeks to regulate the altruistic surrogacy practice in the country and to ban commercial surrogacy to make the service ethical and easy, both for the intending parents and the surrogate.

The bill guides the authorities on how to conduct legal and ethical surrogacy and lays down various provisions regarding the eligibility of the parents and surrogates as well as their rights and obligations. It will prevent the miscreants to fulfil their selfish motives by subjecting the poor surrogates to become baby-making machines due to their poverty and help someone to become a parent.

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[i] (2008) 13 SCC 518

[ii] Parliament of India, Rajya Sabha, “129^th Report on The Assisted Reproductive Technology (Regulation) Bill,2020”(March 2021)

[iii] The Surrogacy (Regulation) Bill, 2019 available here (last visited on April 26, 2021)

[iv] Ibid

[v] The Surrogacy (Regulation) Bill, 2019 (Bill no.156 of 2019) ,s2(p)

[vi] Sidak Singh Kalra, Surrogacy Regulation Bill, 2020: Balancing Interests: (last visited on April 26, 2021)

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