Surrogacy (Regulation) Bill 2016 -

On 21st November 2016 the 228th report of law commission had recommended prohibition of commercial surrogacy in India.

Surrogacy (regulation)bill 2016 has been a major decision taken by the bench towards regulation of surrogacy practices in India. The bill focuses on prevention of commercial surrogacy, exploitation of surrogate mothers and children born through surrogacy.
Surrogacy means, a woman who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the foetus to term for another woman. Thus surrogacy is part of third-party reproduction which can include oocytes (eggs bought in the baby bazaar), sperm, and embryos.
 

Surrogacy in India

India is considered to be the global hub for surrogacy. Infertile parents from different countries come to India to opt for baby’s birth through surrogacy. Western Gujrat, Hyderabad and Mumbai are the main surrogacy centres in India.

As per 2009 law commission report the surrogacy industry in India of worth Rs.25000 crores. It is currently estimated a business of 2 dollars billion industry.

Before the ban foreigners accounted for 80% of surrogacy births in our country. In the year 2002 India became the first country to legalise commercial surrogacy and in the year 2012 India was named as the surrogacy capital.

Despite this growing prominence of the Indian surrogacy industry in recent years, it is strange but true that the surrogacy practices in India remain largely unregulated.

The Trigger
The debate began in 2008, a Japanese couple commissioned a baby in a small town of Gujarat. The surrogate mother gave birth to a healthy baby girl. By then the couple got divorced and the baby was parentless and stateless caught between the legal system of both the countries.

In 2012, an Australian couple who had twins by surrogacy, rejected one and took home the other.

A single mother of two from Chennai decided to become a surrogate mother in the hope that she will start a shop near her house. Unfortunately, she was paid only 75,000 rupees by the autorickshaw driver and taking a 50% cut, who served as the middle man in the surrogacy business.

On January 2014, a 26-year-old Yuma Sherpa died in the aftermath of a surgical procedure to harvest eggs from her body, as a part of the egg donation programme of a private clinic in New Delhi.

The Bill
August 2017, Parliamentary Standing Committee submitted its 102nd report on the Surrogacy(regulation) bill 2016 and it was tabled in Rajya Sabha and in Lok Sabha on 10th August 2017. The report gives the analysis of the nature of the bill.
Surrogacy bill 2016 shall be applicable to whole of the India except Jammu and Kashmir.

The bill regulates the commercial surrogacy and highlights on altruistic surrogacy in which no expenses are to be paid other than medical expenditure, and also it protects the surrogate mother as well as the baby born through surrogacy. The bill has put a strict prohibition on clinics stating neither getting involved into commercial surrogacy nor shall offer, conduct, promote and undertake or associate with commercial surrogacy. All Assisted Reproductive Technology clinics will need to be registered.

It also bans foreigners and homosexual, single parent, live-in and NRI’s from opting surrogacy.

The bill allows surrogacy for Indian married couples after 5 years of marriage with an official certificate of a doctor declaring the couple to be medically unfit to give birth to a child.

Women within the age group of 23 to 50 years and men aged between 26 to 55 years will be eligible for going through surrogacy.
 

Altruistic surrogacy

Altruistic surrogacy refers to an arrangement where the surrogate does not receive money for her service but for the medical expenses. Many of the arrangements are made within family members or close friends.

The expenses to be paid are-
# Medical expenses, including the embryo transfer or artificial insemination, fertility injections, and labour and delivery costs
# Donation fees ifan egg donor or sperm donor if required.
# Attorney fees
# Counselling expenses
# Additional fees, including maternity clothing and travel costs to transport her to and from appointments
# Agency fees
 

Eligibility for surrogacy

# Indian married couple who are medically declared unfit for producing a baby.
# The couple must not have any child, neither adopted nor natural.
# Women of age 23-50 years and Men of age 26-55 years of age.
# Only close relative can be approached for ‘altruistic’ surrogacy.

Penalty
Any intending couple or person or any clinic getting involved into commercial surrogacy will be charged a heavy fine of 5 lakhs and imprisonment of 5 years and repeated offenders will have to face a fine of 10 lakhs and imprisonment of 10 years.
Whoever contravenes the act will have to face imprisonment for not less than 3 years, 5 lakhs fine and repeated offenders might be charged with additional 10,000 rupees fine per day.


Analysis
In India, infertility is generally known to be a sin. The trauma of infertility is best described and felt by the married infertile couples.
Hence surrogacy is considered as the ultimate option by many of the couples resulting in win-win situation for both, the couple as well as the surrogate mother.
The Assisted Reproductive Technology has helped millions of infertile couples who have got medical complications.
But the banning of surrogacy has shattered millions of couple’s dream of becoming parents.
The bill, rather than safeguarding surrogacy through strict and transparent mechanism, the government has banned the commercial surrogacy.
The bill does not even define the term ‘close relative’ properly, which might to exploitation of law by wrongfully using the ‘close relative’ clause.
The value of the so-called surrogacy industry of India is 2 billion dollars, which has now come down to null.
Besides, if surrogacy is banned, a black market will surely emerge where middle-men would take away the financial benefits and women would lose both income and adequate parental care.

Conclusion
However, the Surrogacy Bill will curb unethical practices and protect the exploitation of surrogates by middlemen and will also keep a check on illegal acts like flesh trade and many more.