Loopholes in the law

March 5, 2019 0 By FM

In a significant development, Lok Sabha recently passed the much-awaited Surrogacy (Regulation) Bill 2016, which bans commercial surrogacy in the country. The Surrogacy Bill was introduced in Lok Sabha in 2016 with an aim to regulate surrogacy in India and protect women from exploitation. The bill is now in the Rajya Sabha for its ratification. The government move to ban commercial surrogacy in the country came after reports of misuse of women and campaigns against commercial surrogacy by various organizations.
India emerged as a favourite surrogacy hub for couples across the world over the years. There were several incidents of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and import of human embryos and gametes. The Law Commission of India had also recommended the prohibition of commercial surrogacy through legislation as lack of legislation had resulted in a huge increase in commercial surrogacy and widespread unethical practices in the area of surrogacy. The bill, which proposed banning of commercial surrogacy, however, allowed altruistic surrogacy.

Who is a ‘close relative’?
Dr Ranjana Kumari, Director, Centre for Social Research, said, “A few years ago we conducted researches in places such as Jamnagar, Surat, Bombay, Delhi and Hyderabad, where commercial surrogacy is prevalent. As part of the study, we consulted stakeholders, including surrogate mothers, and it was found that women are indiscriminately exploited. In the report we submitted to the Union government, we suggested the regulation of surrogacy and not a total ban on surrogacy. However, the present legislation banned commercial surrogacy.”
The Surrogacy Bill proposes that the intending couple must be Indian citizens and married for at least five years, and either or both members of the couple should be infertile. As per the bill, the intending couple should not have any surviving child biologically or through adoption or surrogacy earlier. The bill also states that the surrogate mother should be a close relative, who is married and having a child of her own. However, it did not define close relative. As per the bill, the child born out of surrogacy procedure shall be deemed to be a biological child of the intending couple and the child shall be entitled to all the rights and privileges available to a natural child.
Under the bill, central and state governments will appoint appropriate authorities to grant eligibility certificates to the intending couple and the surrogate mother. The bill proposes imprisonment for a period of 10 years and a fine of up to Rs 10 lakh if surrogacy is undertaken for a fee, advertised or the surrogate mother is exploited.

Silent on cryostorage
Commenting on the bill, Dr Alex C. Varghese, Former President, Academy of Clinical Embryologists, said: “The surrogacy bill is a good initiative. There should be some kind of checks as there can be lots of practices which are not ethical. Commercial surrogacy also puts a question mark on womanhood. In India, there are more chances of unethical practices, and based on that, this kind of law is very valid.” He added that there may be some loopholes in the bill and more discussions may be required to check those loopholes.
The bill proposed that the intending couple and the surrogate mother need eligibility certificate, but it does not specify a time limit for granting the certificates. Though the bill states that the surrogate mother should be a close relative, it also does not define close relative. As per the bill, the approval of the appropriate authority and the consent of the surrogate mother are required for an abortion. However, it does not give any role for the intending couple in the decision for abortion.
The bill has also proposed banning the storage of embryos and gametes for surrogacy purpose in contrast to the existing ICMR guidelines, which allow storage of embryos for a period of five years. “The bill is not clear in the case of embryos and gametes in cryostorages in the country. The current situation does not allow their export. As they are a form of life, they cannot be destroyed,” said Dr Alex C. Varghese.
As per the bill, no person shall establish surrogacy clinics for undertaking surrogacy unless they are duly registered under the Act.