Is surrogacy bill enough efficient to resolve the doubts raised by the medical fraternity in India?

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This year, a panel in Parliament passed the Surrogacy bill. This  Bill creates a huge dilemma among the assisted reproductive technology (ART) practitioners and individuals who want to avail the fertility treatment through ART. The aim of passing this Bill is to regulate the ART clinics by restrictive practice. But the unnecessary regulatory provisions raise doubt about the efficiency of this Bill. This Bill unable to clear the doubt of the Indian Council of Medical Research (ICMR ).

In India, ART clinics mainly offer IVF treatment and surrogacy services. In 2005, ICMR first took a responsibility to regulate the surrogacy practice in India by preparing the outline of the National Guidelines for Accreditation, Supervision, and Regulation of Indian ART clinics. After the first attempt, ART Bill had re-drafted in 2008, 2010 and 2014, but Parliament never passed this Bill.

In 2009, the Law Commission of India realized the necessity of ART clinic regulation guidelines and to clarify the rights and obligations of both intended parents and surrogates who wish to opt surrogacy. According to this Indian Law commission recommendation, ‘altruistic’ surrogacy’ could only be permitted, whereas, commercial surrogacy should be ban in India. This recommendation is ultimately followed in 2016 Surrogacy Bill. 

Parliamentary Standing Committee on Health and Family Welfare was taken the charge for examining the guidelines of this Bill. In 2017, the report submitted by the panel had suggested a decent amendment of the Bill, which stated that instead of surrogacy Bill, it should ART Bill. They justified as ART clinics provide the surrogacy service and no separate surrogacy clinics are there in India. Therefore, regulation of all ART clinics can give a suitable solution for regulating the ART process completely.  

ART Bill prepared in 2014 had mentioned the details of the ART clinics and ART banks, including the type and nature of services provided, the outcome of the services, etc. But the government disregarded the recommendations mentioned in this draft.  In 2019, the Lok Sabha promptly passed the Bill after reintroducing the 2016 Bill.  Now the Rajya Sabha advises to re-send the Bill to the same Parliamentary panel before taking any further decision.

The composition of the Bill

This recommendation of this Bill proposes to build up Surrogacy Boards under state, union territory, and national levels. Moreover, appropriate authorities need to appoint for regulating the surrogacy practice and process.

This new amendment of the Surrogacy Bill proposes that the commercial surrogacy, embryo sale and cross-border import completely ban in India. All the surrogacy clinics, where provision for any form of surrogacy related service should have mandatory registration. The finding of breaking the rules and regulations mentioned in this Bill is considered a punishable offense.  The accused person or authority will get the punishment of imprisonment for not less than ten years and need to pay Rs 10 lakh as a fine.

This Bill permits only ethical altruistic surrogacy to  Indian married couples who have completed their 5th marriage anniversary. This Bill also restricts the age limit for both the genders. The age limit for women is in between 23-50 and for male 26 to 55 years.  

In Altruistic surrogacy, except the medical expenses and insurance coverage no payment allocated for the surrogate. This Bill also mentioned that only married close relative can be a surrogate mother and she should have her child. The age limit for surrogate mother is in between 25 to 35 and she could pursue surrogacy only for once.  

In case of requirement of pregnancy termination,  written permission needs to take from surrogate mother. Along with this, appropriate authority should authorize the termination process after taking proper justification.

This Bill also takes care of preventing the rejection of the child born through surrogacy. It seeks for providing the same rights and privileges to the child born through surrogacy as available for the biological child.

Reasons to pass this Bill  

The reason to pass this Bill illustrated that without proper rules and regulation can cause increase rate of commercial surrogacy and related unethical practices. This Bill also prevents the exploitation of surrogate mothers, rejection of children born through surrogacy and restrict the import of human embryos and gametes.

Limitation of this Bill

This Bill ignores some important recommendations provided by the 2017 Parliamentary panel, though the intention of passing this Bill is to regulate the ART clinics.

The objective of limiting surrogacy to a ‘close relative’ does not clearly define the term, which creates confusion among ART practitioners and for intended parents also. intended parents may have a pressure to search for female ‘close relative’ and those who have not appropriate match, they are unable to avail this treatment procedure. This can create an acute dearth of suitable women, which has no connection with the exploitation of women. This limitation can be solved by providing surrogacy permission for both related and unrelated women.       

This Bill also promotes altruistic surrogacy, which can create a family pressure to the close female relative. This can be considered as a mode of exploitation of the female in the social, emotional, ethical and legal ground.

The new Bill extend this period for five years to consider the infertility issue and allow only those couples who have completed five years of marital status. According to the WHO and the ART Bill of 2014, one-year spontaneous failure for conceiving is considered an infertility problem. Therefore, according to the medical point of view extending the period for defining infertility is unjustified.

Nowadays people get married late and waiting period for five years can cause a violation of the reproductive rights of a couple, as the biological clock stop ticking after a certain an age.

Stopping of compensation for surrogacy is also not a fair judgment for surrogate mother. She takes nine months physical hardship and for that, she must pay appropriate amount apart from medical and legal charges. Also, panel experts suggested that the permitting payment method in surrogacy helps women to support their family need.

This bill also ignores the suggestion of a precise definition of the surrogacy to avoid any misinterpretation. The inclusion of several unnecessary points like restrictions on donating gamete, removal of written permission for abortion should be omitted from this Bill. The Medical Termination of Pregnancy Act of 1971 already provided the guideline for abortion. Therefore, no need to create other rules and regulation specifically for surrogacy.

All the above-mentioned points had recommended by the 2014 panel, But recent Bill ignores them and comes under the doubt of its efficiency.   

Opinions of Medical fraternity:

Dr. Sharda Jain, the renowned Indian gynecologist and IVF specialist, who teaches Chandigarh’s PGIMER and Delhi’s Lady Hardinge Medical College and also associated with the Indian Medical Association shared her view on the newly passed surrogacy Bill. According to Dr. Jain, passing the surrogacy Bill in India is a good step to restrict commercial surrogacy.

She also encouraged to ban  “single parents” surrogacy in India by allowing only Indian married couples for surrogacy, as she acknowledged that 90% single parents who want to opt surrogacy belong to foreigner gay community. But she has the same opinion as Parliamentary body, which addressed the need of clarity on ‘close relative’ and  ART Bill should be passed first, before issuing surrogacy, Bill.

Read Also: Best Surrogacy India Alternative

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