IMA Points on The New Draft Surrogacy (Regulation) Bill, 2016

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Commercial surrogacy is banned in most developed countries, including Australia, UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand. Now this bill bans it in India too. But the bill allows altruistic surrogacy, where women (near relative) can legally carry someone else’s child if no money (other than reasonable medical cost and insurance), favour or coercion is involved.

Under the proposed law, only proven infertile Indian couples who have been married for at least five years can opt for surrogacy, while those who already have a child cannot do so.

Only Indian nationals will be allowed for altruistic surrogacy. Foreign nationals or even NRI or OIC will not be allowed. Only married couples will be allowed to opt of surrogacy. Gay, single, live-in couples are not allowed. The marriage should be minimum of five years and the age of the woman should be from 23-50 and for the man 26-55.

The Bill has penalty provisions for those violating the law, when it comes into effect. The penalties include a huge monetary fine (10 lakh), and imprisonment (10 years) and even striking down the name from medical register. This will increase paper work. The records will now have to be kept for 5 years and not 2 years.

• There will be no role of brokers, agents or inter-mediators and the onus of proof in the case of negligence will be with the clinic and not the surrogate or egg donor.
• Reasonable medical expenses not clear. Does it include her man hours away from work?
• Proven infertility would be difficult to certify. Infertility is a relative term and would be difficult to define in absolute terms.
• Close relative not defined. The law that insists that a surrogate woman has to be a close relative of the infertile couple would be “impractical” and may also raise the risk of the surrogacy industry, driven by demand, moving underground, spawning illegal transactions. People will start making fake documents that they are near relatives.
• Five years waiting after marriage is not scientific. It’s true that a girl marries at 18 and a boy at 21. But why should a couple wait for 5 years if they marry at 40.
• Imprisonment clause is now coming in every new bill PNDT, CEA, Health Data Bill and now surrogacy bills. To err is human. Doctors are not criminals… 10 years of jail and 10 lakh penalty unheard of.
• There are more than 50 million infertile couples in the world and their desperation for a biological child has turned commercial surrogacy into a booming business. Thousands of infertile couples rent wombs from poor women for 9 months so they can take a baby back home. India has estimated 12-15 million infertile couples… a big market for sperm and ova banking, embryo implantation and surrogate womb services. Celebrities also rent wombs.

An end to commercial surrogacy will be a big blow to many infertile couples. Infertile couples generally do not discuss in-vitro fertilisation (IVF) or third-party reproduction (surrogacy) with close relatives. This is kept as secret as possible, particularly from their close family members, so how are they going to find altruistic close relatives.

Finding women from within the close family willing to be surrogates will not be easy. Many infertile couples are likely to find themselves in distress.

• There are medical grounds where surrogacy is justified – imagine a woman who has lost her uterus during childbirth or a woman born without a uterus.
• The proposed surrogacy law might even lead to break-up of marriages. This may lead to an increase in second marriages, if surrogacy is not allowed; some couples may break up.
• No surrogate till date has complained of ill treatment. We had filed an RTI with the Govt. of India – No exploitation at all was found. They could have defined reasonable compensation instead of Ban, which was the easy way out.
• Parents who have their own child or have an adopted one will not be eligible to go for surrogacy. But India does not follow one child norm. Then why should a couple who has one baby not allowed to try surrogacy? One’s parental need for the number of children cannot be defined in law.
• Why ban NRIs or OICs?
• National Surrogacy Board will be constituted under the chairmanship of health minister. Three female MPs will be members of the board and two MPs will be from Lok Sabha. Why only female members in the board?
• There should be a medical certificate stating that the couple is not able to produce their own child. Who will issue the certificate?