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THE SURROGACY (REGULATION) BILL 2019

Updated: Feb 6

By

Amit Sheoran, I year of B.A.,LL.B, from Symbiosis Law School, Nagpur


Introduction

The Surrogacy ( Regulation) Bill 2019 was introduced by the Ministry of Health and Family Welfare, Dr. Harash Vardhan in parliament. It was passed by the Lok Sabha on 5 August. The main purpose of the bill is to ban Commercial Surrogacy. According to the bill, the defination of Surrogacy, is as, it is a process where women give birth to a child for an intending couple to hand over the child after birth to the intending couple. Regulation of Surrogacy Bill prohibits commercial surrogacy but allows altruistic surrogacy.

Difference between altruistic surrogacy and commercial surrogacy

Altruistic surrogacy involves no monetary compensation to the surrogate mother other than medical compensation and insurance coverage during the pregnancy. In altruistic surrogacy, intended couples required a baby for themselves because one parent or both the parents are not able to give birth to the child because of being medically proved infertile. The sole purpose behind altruistic surrogacy is to give birth to a child by a surrogate mother for the intending couple.


Commercial surrogacy includes surrogacy or its related procedure undertaken for the benefit or reward exceeding the basic medical expenses and insurance coverage. The main aim behind commercial surrogacy is to earn money. In another word, we can say that commercial surrogacy is the process of taking a womb for rent.


Surrogacy is permitted

The surrogacy is permitted only when the particular conditions are fulfilled by the intending couple. The infertility of the couple should be proved by a medical report. The intending couple needs to check their infertility with at least two doctors. Those conditions which are necessary to be fulfilled are given below:-

  • when any couple is not able to give birth to a child because of medical infertility.

  • Altruistic surrogacy is permitted.

  • It is not permitted for commercial purposes.

  • It is not permitted for the purpose of producing children for sale, prosecution, or another form of exploitation.

  • When any condition or diseases specified through doctors reports that the couple cannot give birth to their child.


Eligibility criteria for the intending couple

The couple should have the certificate of essentiality and a certificate of eligibility for surrogation issued by the appropriate authority. The certificate must be proven infertility of one or both members of intending couple from District Medical Board and order of percentage and custody of the surrogate child passed by Magistrate court and insurance cover for 16 months covering postpartum delivery. The couple are Indian and married at least 5 years ago. The age should be between 23 to 50 of wife and 26 to 55 of male, and they don’t have any service child (biological, adopted, or surrogated ). This would not include a child who is mentally or physically challenged or suffers from a life-threatening illness.

Surrogate mother, according to the bill The surrogate mother should be a close relative of that intending couple and have its child. Her age should be 25 to 35 years old. She can surrogate only once in a lifetime and possess the certificate of medical and psychological fitness for surrogacy. The further surrogate mother cannot provide her game for surrogacy. Surrogacy clinics can’t undertake surrogacy-related procedures unless they are registered by the appropriate authority.


A child was born out by surrogacy procedure will be deemed as the biological child of the intending couple.


An abortion of a surrogate child requires the written consent of the surrogate mother and the authorization of appropriate authority. The surrogate mother has the option to withdraw from surrogacy before being implanted embody if she wants.


Steps raised by the government

The center and the state govt. Shall constitute the National Surrogacy Board and the State Surrogacy Boards respectively. The function of the National Surrogacy Board advising the central government on policy matters relating to surrogacy and the same in-state surrogacy board advising the state government. Those clinics which have registered under the Surrogacy Regulation Act will be able to perform the surrogacy procedure. The surrogacy procedure is the process of putting the mix of male sperm with female egg into the womb of other women who is a surrogate mother.


Provision of punishment

The offenses under the bill include 1) undertaking or advertising commercial surrogacy 2) exploiting surrogate mother 3) abandon, exploiting surrogate child 3) selling or importing human embryo/ gametes for surrogacy. The penalty for such an offense is imprisonment up to 10 years and a fine of up to 10 lakhs.

Conclusion

As we know, surrogacy became an issue worldwide. Surrogacy is the process in which women agree to give birth to a baby for the intending couple who are not able to give birth to their child. Surrogacy is further categorized into two parts, altruistic and commercial surrogacy. Commercial surrogacy is illegal in India. Altruistic surrogacy is allowed in India. The sole purpose of surrogacy is to give birth for taking high rewards. Surrogate mothers give birth to the child for the purpose of sale or illegal purposes while altruistic surrogacy is the opposite of commercial surrogacy. In an altruistic surrogacy, there are no rewards required. The sole provision of this bill is to ban commercial surrogacy. Various provisions were made by the government to ban and made illegal commercial surrogacy and also made provision for punishment. This bill helps to keep safe those women who are forced for surrogacy. There were a lot of provisions made for the empowerment and upliftment of women. We can also say that surrogacy is a precious gift for those couples who are not able to give birth to their child. After seeing the various provision made in this bill, I hope commercial surrogacy will completely ban it if we all work together and take a pledge not to do such type of illegal work in the future.