- The Surrogacy (Regulation) Bill 2019, which proposes to ban commercial surrogacy, was passed by Lok Sabha on August 5. The Bill was introduced by the Minister of Health and Family Welfare, Harsh Vardhan, in the House on July 15.
What is commercial surrogacy?
- Surrogacy is defined as the practice in which a woman gives birth to a child for a couple, referred to as an “intending couple”, with the intention to hand over the child to that couple.
- An ‘intending couple’ are a couple who have medically been proved as infertile. Ordinarily, in surrogacy, eggs are extracted from the intending mother and after fertilisation, are implanted in the surrogate mother’s uterus.
- Surrogacy can be either altruistic or commercial. In the former, no monetary considerations are involved, except medical expenses and insurance. In the case of commercial surrogacy, the woman who gives birth to a child for the intending couple is rewarded for it in cash or kind.
Who can be a surrogate mother?
- Chapter I of the Bill defines a surrogate mother as, “a woman bearing a child (who is genetically related to the intending couple) through surrogacy from the implantation of the embryo in her womb…”. A married woman between the ages of 25 and 35 who has a child of her own can be a surrogate or can help in surrogacy by donating her egg.
- The surrogate mother needs to be a close relative of the intending couple and can become a surrogate only once in her lifetime. Additionally, a woman cannot become a surrogate mother by providing her own gametes (unfertilised eggs).
When is surrogacy permitted?
- As per the Bill, only altruistic surrogacy will be permitted in India, in cases where either or both members of the couple suffer from infertility, of which the certificate of essentiality is proof. Additionally, a certificate of eligibility is issued to the intending couple and is proof that the couple has been married for at least five years, and are Indian citizens. The wife must be in the age group of 23-50, and the husband in the age group of 26-55.
- The intending couple should not have any surviving biological child, through adoption or through surrogacy. An exception is made if the intending couple has a surviving child who is mentally or physically challenged, or is suffering from a fatal illness with no permanent cure.
Where can surrogacy procedures be carried out?
- Only surrogacy clinics registered under the Surrogacy (Regulation) Act, 2019 will be able to perform procedures related to surrogacy. The Bill defines surrogacy procedures as “all gynaecological, obstetrical or medical procedures, techniques, tests, practices or services involving the handling of human gametes and the human embryo in surrogacy”.
Who can be guilty of commercial surrogacy?
- According to the Bill, if an individual is found advertising or undertaking surrogacy, exploiting the surrogate mother, selling, importing, purchasing or trading human embryos or gametes for surrogacy, conducting sex selection for surrogacy, or has abandoned, exploited or disowned a surrogate child, he/she can be liable for imprisonment of up to 10 years and a fine of up to Rs 10 lakh.
- In case abortion of a surrogate foetus is considered, only the consent of the surrogate mother is required, as per the provisions under the Medical Termination of Pregnancy Act, 1971. The intending couple has no say in this decision. On the other hand, after being born, the child is considered to be the biological child of the intending couple.