Author: Rashmi Bansal, Student at Banasthali Vidyapith.
Surrogacy in simplest term, a husband and wife want a child and in today’s society women don’t want to go through pregnancy just because it affects their body, their lifestyle, the comfort zone, etc. and now it is too common in developed countries as well as in India too. they do not go for pregnancy on their own rather they for a surrogate. In this situation when a couple wants children they hire a surrogate mother. Surrogate mother means another lady to carry their children means that she take their sperm and egg to fertilize and it would be transferred to that particular lady who carries the child for nine months. After the birth of the child, the lady gives the baby to the couple and in return, she will get some compensation and benefits also because she carried their child for nine months as agreed in their contract.
This is the basic simple policy of surrogacy that a couple needs a child and they hire a mother, she gives the baby to them and gets compensation for the same. Our government had a complete ban on this process and due to this poor women in India suffers.
In the simplest form, it means “rent a womb” carry a baby for nine months and give it to the couple. In 2002 commercial surrogacy was run in India and it was also legalized at that time commercial surrogacy means the same rent a womb for nine months and get some compensation in exchange. This was legalized at the time of “Atal Bihari Vajpayee’s” government and the reason was that to promote medical tourism in India and after this decision, India became “the hub of surrogacy”. India has a problem of poverty and due to this reason, the cost of surrogacy was too low in India as compared to US, its approximately $100,000 according to our country it was seventy lakhs rupees around and other main reason behind it that absence of strict legislation in India and various loopholes. If we read the report of CII (Confederation of Indian Industry) in 2012 the size of India’s surrogacy industry was income of $2 billion in a year. It was also found that India has more than 3,000 fertility clinics were engaged in surrogacy and it becomes a wide business in India. However it is an unregulated business of surrogacy in India and it led to concern- unethical practices, middleman and commercial agencies profited the most, exploitation of surrogate mother, rackets (organ trade, embryo trade etc.), abandonment of children born out of surrogacy. After seeing all these major issues spread in the country it really needs strong legislation to regulate surrogacy in India.
LAW COMMISION SUGGESTED:
Law commission of India highlighted that there is a need to enact a law to regulate commercial surrogacy and it is important to control the unregulated activities regarding surrogacy, the number of cases were also increasing and women suffered from very tough phase. In the 208th report by the law commission of India recommend prohibiting commercial surrogacy reason being 1. Misuse by foreigner couple to an Indian couple 2. Lack of proper legal framework 3. Exploitation of the surrogate mother who may have been forced to become a surrogate due to poverty and lack of education. In 2015 a government notification came about the prohibited surrogacy for foreign nationals and In 2016 surrogacy (Regulation) bill was introduced for first time in Lok Sabha, and it was passed from there but the bill has lapsed after parliament was dissolved.
THE SURROGACY (REGULATION) BILL, 2019
The bill related to the ministry of health and family welfare again introduced in Lok Sabha July 15, 2019 and passed same in August 05, 2019, and after that, it was referred to the select committee in November 21, 2019, and the bill is pending in Rajya Sabha. The bill consist of several points:
- The constitution of surrogacy boards at the national as well as state levels.
- Restriction on commercial surrogacy and allow only ethical altruistic surrogacy means that without taking any consideration from the couple with the purpose of forgiveness and helping others.
- Eligibility criteria – married couple of India for at least 5 years of togetherness also they have to provide a certificate that they are infertile and they need a child. They have to undertake that they will not abandon the child born out of surrogacy in case of child been born unhealthy or with some disease.
- Surrogate mother – the close relatives of the couple can only become the surrogate mother although the close relatives were not defined clearly and the lady was between the age of 25-35 years, she must be a married woman having a child of her own and laid down a condition also that she was not a previously surrogate mother.
- Surrogate mother shall have insurance coverage for sometime to cover not only the period of pregnancy but after that also.
- The bill also seeks to regulate functioning of surrogacy clinics. All surrogacy clinics in India need to be registered.
- The bill also specify that no sex selection can be done when it comes to surrogacy, try to know about the sex of child whether male or female strictly prohibited and punishable.
- What about maternity relief to surrogate mother? If a woman carry baby for nine months and do the household work also then government should provide some maternity relief to them.
- Is their complete ban on the commercial surrogacy is right or wrong? Actually this harm more after ban on commercial surrogacy because people engaged in underground operations and misuse of women increased also.
- The bill said that couple need to prove that they are infertile or not able to born a child this directly effects on their life by reveal the internal information publicly and the society starts taunting or cracking some nuisance joke on them.
- Why shouldn’t woman get to choose if they want to rent their womb? Article 14 and 21 given to all and a woman has also their right to choose to become a surrogate mother and earn money.
After seen all the major issues and delay in pass the bill of surrogacy another option and also best option came in our mind is that adoption but adoption is a lengthy and tricky process in our country with a number of restrictions upon them like a non- Hindu couple does not adopt a Hindu child, the guardian and wards act, 1890 only permits to become a guardian of a child not the adoption, there are various orphanage homes in our country and the couple doesn’t want to adopt a child from them instead they go for commercial surrogacy. Loopholes in our law system sometimes become forcedness especially for the poor section and unwillingly they go for it. It really needs a change and has a look on these major issues.
 Right to Equality
 Right to Life and Personal Liberty