Surrogacy Regulation Bill- Objective, Feature, Eligibility

The Surrogacy Regulation Bill of 2020, introduced by the Ministry of Health and Family Welfare in the Lok Sabha on July 15, 2019, underwent a significant legislative journey, culminating in its enactment after receiving presidential consent on December 29, 2021, and subsequent cabinet ratification. Crucial for UPSC IAS examination preparation, particularly within General Studies Paper 2, it addresses various facets such as objectives, necessity, key provisions, eligibility criteria, the establishment of national and state surrogacy boards, and critiques and challenges faced.

Surrogacy Regulation Bill 2020

The Surrogacy Regulation Act refers to the process where a woman gives birth to a child to be handed over to an intended couple after birth. Its key provisions encompass eligibility criteria for intending parents, limitations on types of surrogacy, and the establishment of regulatory authorities. Furthermore, the bill prohibits foreigners, same-sex couples, and single individuals from pursuing surrogacy in India, aiming to maintain a balance between the ethical considerations of surrogacy and the rights of individuals engaged in the process.

Regulation of Surrogacy

The bill prohibits commercial surrogacy while permitting altruistic surrogacy. Commercial surrogacy, driven by financial gain, excludes basic medical expenses and insurance coverage for the surrogate mother. In contrast, altruistic surrogacy involves no financial compensation for the surrogate mother, except for covering medical expenses and insurance during the pregnancy period.

Objective Surrogacy Regulation Bill 2020

The Surrogacy (Regulation) Bill has key objectives and necessities:

• Addressing unethical practices surrounding sex selection and the exploitation of surrogates.
• Establishing a regulatory framework for assisted reproductive technology and surrogacy in India to prevent the proliferation of commercial surrogacy without proper legislation.
• Safeguarding women, particularly those facing financial hardships, from exploitation and coercion into surrogacy arrangements.
• Regulating the process of sex selection to counter the presence of unregulated IVF centres performing illegal procedures across the nation.
• Eradicating the practice of reproductive medical tourism.

Features of Surrogacy Regulation Bill 2020

Candidates can check the features of the Surrogacy Regulation Bill including:

• Definition: Surrogacy is defined as a practice wherein a woman gives birth to a child for intending parents, who receive the child after birth.
• Regulation: The bill permits altruistic surrogacy but prohibits commercial surrogacy.
• One-time Surrogacy: A woman can act as a surrogate mother only once under the bill.
• Eligibility: Any willing woman, including widows and divorcees, can opt for surrogacy to have children, while single men and women are restricted from seeking surrogacy.
• Insurance: Mandatory insurance coverage for the surrogate mother for 36 months to address post-birth complications and associated physical and mental health issues.
• Clinic Registration: Surrogacy clinics must be registered under an appropriate authority and cannot undertake surrogacy-related procedures without registration, with a 60-day registration application period.
• Parentage and Abortion: Children born through surrogacy are considered the biological children of the intending couple, and abortion requires written consent from the surrogate mother and authorization from the appropriate authority, following the Medical Termination of Pregnancy Act, 1971.
• Surrogate Withdrawal: The surrogate mother can withdraw from the surrogacy arrangement before the embryo is implanted in her womb.
  Sex Selection Prohibition: The bill prohibits sex selection in surrogacy procedures.

Eligibility Criteria for Permitting Surrogacy

The eligibility criteria for permitting surrogacy include:

Certificate of Essentiality

• A certificate confirming the proven infertility of one or both members of the intending couple from a district medical board.
• An order of parentage and custody of the subject child issued by the Magistrate court.

Certificate of Eligibility:

• The intending couple must be Indian citizens and married for at least five years.
• The wife’s age should be between 23 to 50 years, and the husband’s age should fall between 26 to 55 years.
• The intending couple should not have any surviving child, whether biologically adopted or through surrogacy, excluding children who are physically or mentally challenged or suffer from life-threatening disorders or fatal illnesses.
• Other conditions may be specified by an appropriate authority.

Eligibility Criteria for Surrogate Mother:

• The surrogate mother must be a close relative of the intending couple.
• She should be a married woman with a child of her own.
• The surrogate mother’s age should be between 25 to 35 years.
• Surrogacy can only be opted for once in the surrogate mother’s lifetime.
• She must possess medical and psychological fitness certificates to qualify for surrogacy.
• The surrogate mother is prohibited from providing her gametes for surrogacy purposes.

Changes under Surrogacy Regulation Bill, 2020

• Commercial surrogacy is prohibited, permitting only altruistic surrogacy with no financial compensation except for basic medical expenses and insurance coverage.
• The sale and purchase of human embryos and gametes are banned.
• The previous definition of ‘infertility,’ requiring five years of unprotected intercourse, has been eliminated as deemed unreasonable by the select committee.
• Surrogacy is allowed for Indian married couples, including Indian-origin couples and single Indian women (widows and divorcees aged 35-45).
• Insurance coverage for surrogate mothers has been extended from 16 to 36 months due to the risk of medical complications.
• Couples must acquire essentiality and eligibility certificates before pursuing surrogacy, and they are prohibited from abandoning the child born through surrogacy.
• The bill mandates the registration of surrogacy clinics and outlines offences with penalties of imprisonment and fines.
• It proposes the establishment of a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) to advise the government and supervise clinics.

Penalties and Offences under Surrogacy Regulation Bill

The bill outlines several offences, which include:

• Engaging in or advertising commercial surrogacy.
• Exploiting the surrogate mother.
• Abandoning, exploiting, or disowning a surrogate child.
• Selling or importing human embryos or gametes for surrogacy.
• The penalty for these offences is a fine of up to Rs 10 lakhs or imprisonment for up to 10 years.

Criticism and Challenges of Surrogacy Regulation Bill

The bill faces several significant criticisms:

• It denies the surrogate child the right to pursue the profession, potentially impacting the surrogate mother’s income. The Supreme Court’s ruling in the Devika Biswas versus Union of India case emphasized the fundamental right to reproduce, indicating that limiting surrogacy to heterosexual couples contradicts the 2018 Supreme Court judgment.
• By restricting surrogacy to a narrow demographic, the bill reduces the pool of potential surrogate mothers, indirectly denying intending couples the option to pursue surrogacy.
• Intending couples must obtain a certificate of essentiality, affirming their biological incapacity to conceive naturally, neglecting other medical conditions that may hinder pregnancy.
• The bill overlooks cases where women may choose to avoid pregnancy due to career-related obligations.
• It fails to address domestic violence against women adequately.
• While prohibiting commercial surrogacy, the bill risks fostering an underground market where willing women may engage in surrogacy without proper approval from authorities, creating potential risks and ethical concerns.

National and State Surrogacy Boards

The act mandates the establishment of both national and state surrogacy boards. The national surrogacy board is to be formed by the central government, while the state surrogacy boards are to be constituted by the respective state governments.

The functions of the National Surrogacy Board include:

• Advising the central government on policy matters concerning surrogacy.
• Formulating a code of conduct for surrogacy clinics.
• Overseeing the operations of the state surrogacy boards.

Cross-Border Surrogacy Problems

• Childless couples seeking surrogacy across borders often encounter language barriers and undergo prolonged legal battles to secure their children.
• Cross-border surrogacy gives rise to intricate issues concerning citizenship, nationality, motherhood, parentage, and a child’s rights, sometimes leading to denial of citizenship in the intended parents’ country.
• The absence of an international surrogacy law complicates matters for both surrogates and intended parents, with differences in surrogacy laws between the home country and the birth country posing significant challenges.
• Many experts advocate for the necessity of an international agreement similar to the Hague Adoption Convention to establish uniformity across countries and streamline the surrogacy process.

Surrogacy Laws in Different Countries

Surrogacy has different Laws in different countries. Which made their official authority, to understand them properly must read the below points.

• Altruistic surrogacy is legal in countries such as Britain, America, Australia, the Netherlands, and Denmark.
• France, Germany, Italy, Spain, Portugal, and Bulgaria prohibit all forms of surrogacy.
• Armenia, Georgia, Kazakhstan, Russia, and Ukraine permit both altruistic and commercial surrogacy.
• Kenya, Malaysia, and Nigeria lack formal laws regulating surrogacy, but it is not prohibited.
• The Czech Republic, Colombia, Chile, and Hungary have unregulated surrogacy.
• In the UK, commercial surrogacy is illegal, and legal parenthood can be transferred after birth.
• In the USA, surrogacy laws vary by state, with some permitting both commercial and altruistic surrogacy.
• Canada permits only altruistic surrogacy with reimbursement for approved expenses.
• Quebec in Canada prohibits all surrogacy arrangements.

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