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The Indian Parliament recently passed two landmark acts – the Surrogacy (Regulation) Bill and the Assisted Reproductive Technology (Regulation) Bill – both of which will have a huge effect on Indian women’s reproductive health and rights.

Mansukh Mandaviya, Health Minister stated in Parliament that the concept behind the new legislation is to "supervise" and “regulate” assisted reproductive technology (ART) clinics and surrogacy and decrease unethical practices regarding issues like exploitation of surrogate mothers and sex selection by implementing both money penalty and jail terms for infringements.

Although transnational surrogacy was barred in India in the year 2015, ART and domestic commercial surrogacy have continued to grow with the support of well-established networks of unvetted agents, and private clinics. The fresh laws declare to put in place entities like new State and National ART and Surrogacy Boards, as well as a National ART and Surrogacy Registry, to assist the government on policy and regulation matters. The Registry will also handle a database of the ART treatments done across the country to assure clarity in such matters.

Any medical practitioner who commissions an offense under the Act shall be entitled to imprisonment extending up to 5 years and a fine of up to Rs. 100,000 Indian rupees. The offenses are non-bailable. If a consequent offense is commissioned by the same person, the practitioner shall be disclosed to the appropriate authority and the State Medical Council for remitting their registration for 5years. 

While the same laws have wise intentions, and many of their provisions focus to decrease India’s hitherto unregulated surrogacy industry by introducing thousands of ART and surrogacy clinics under the boundaries of the law, activists state that they lack in many areas. As per Ajit Kumar Bhuyan, the country’s biggest opposition party are the laws that are “out-of-touch with ground realities.” 

Bhuyan was talking about the laws’ contentious clause that bars commercial surrogacy: providing financial benefits that include compensation besides medical expenses and insurance in pregnancy. The new law allows only “ethical” or altruistic surrogacy, which will be entirely free of any money transaction to surrogates. Women activists state that this clause will take avenues for poor women to monetize their services as a surrogate in the lack of any other beneficial employment.

The law demands that any couple who starts commercial surrogacy shall be punished for the 1st offense with imprisonment up to 5 years and a fine of up to Rs. 50,000 and for any consequent offense with imprisonment up to ten years and a fine up to Rs.100,000.

Some experts have also shown their concerns over the new laws’ clause to deprive millions of Indian citizens of accessing ART and surrogacy. Single men, same-sex couples, heterosexual couples living together, and LGBTQ persons cannot enjoy such services. This is despite the Apex Court’s judgment that consensual sexual activity in adults of the same sex is no longer an offense. The Supreme court had also repeated the requirement for inclusion of same-sex couples in all walks of life and has allowed the freedom to recreate this part of their right to privacy.

Even for heterosexual married couples wanting a child born out of surrogacy, the activist added, the new legislations list tedious and long criteria. “For example, the provision that couples wanting surrogacy should be in a marriage for at least 5 years is a try at lowering their freedom to create a family earlier if they desire so,” Malik said.

Also, the couple has to involve a man between the ages of 26-55 years and a woman of 25 - 50 years of age. Both have to be Indians and should have no adopted, biological, or surrogate children (unless the child is physically or mentally challenged or has a lifetime disorder).

The condition for anyone choosing to be a surrogate mother described that the subject woman must be married and should have her biological child. She should be between the ages of 25 to 35 and a near relative of the couple choosing for surrogacy. Any woman agreeing to be a surrogate cannot be a surrogate more than once in her life and at the time she should be certified for psychological and medical fitness.

The bill also states particular eligibility conditions for both the couple opting for surrogacy and the surrogate mother. The couple in question is required to have a “certificate of essentiality,” which includes a certificate of proven infertility of one or both persons, a court order on the parentage and custody of the child born through the surrogate, and insurance coverage for the surrogate mother for 16 months, including for post-partum delivery complications.

“Instead of making the new laws pioneering legislation that had the power to create an inclusive and egalitarian society, the lawmakers have ended up creating contentious regulations that are likely to attract litigation in courts and hurt the very women they intend to protect,” said Delhi-based lawyer and activist Sanskriti Taneja.

The expert fears these drawbacks may also contribute to the development of an illegal, informal market in egg donation and surrogacy services. “Any time the law overstretches itself by brushing aside rights of stakeholders, it invariably creates a thriving grey market for the very services it seeks to regulate,” Taneja said.


Written by Parul Sharma


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