Introduction

Surrogacy is the practice of renting a womb; it is a type of assisted reproductive technology (ART). In the year 2002, commercial surrogacy was legalized in India to boost medical tourism in the country. Recently though, the Lok Sabha passed a bill to check the status of commercial surrogacy in India. The bill allows only ethical altruistic surrogacy in which a close relative is contracted by a heterosexual couple who have been infertile for five years of their marriage.

However, the bill ignores the physical and emotional labour of surrogate mothers. It also bans live-in couples, homosexual people, transgender people, and singles from opting for surrogacy.

Thus, the surrogacy bill must be revised to protect and better compensate surrogate mothers and be more inclusive to the various different types of families.

Issues with Surrogacy in India

The high courts have raised serious concerns regarding the surrogacy issue. In one case, baby Manji Yanada was born through surrogacy in India. While the surrogate mother was pregnant, the Japanese couple divorced and abandoned the child.

There have also been a huge number of deaths reported due to surrogacy. The surrogate mothers are not given life insurance coverage, fair compensation, adequate health care, education about the impact of hormones, nor maternity relief.

There are also issues related to the custody of the child when twins or triplets are born.

Need of the Bill

Due to the availability of surrogate mothers at cheap prices and loose legal checks, India has become a hub of surrogacy for the couple coming from foreign lands. Often exploitation of surrogate mothers, unethical practises, and rackets regarding the import of human embryos and gametes are seen.

According to a study by the Confederation of Indian Industry, the surrogacy industry makes about 2 billion dollars a year. Therefore, the 228th report of the law commission recommended prohibiting commercial surrogacy, but suggested permitting altruistic surrogacy.

Features of the Bill

The bill will set up a national surrogacy board and state surrogacy boards. Registration of the surrogacy clinics under the concerned authority will be mandatory. The bill prohibits commercial surrogacy, but allows ethical altruistic surrogacy if the couple meets the stipulated conditions. Moreover, the sale and purchase of human embryos and gametes will be prohibited since it is considered unethical by many pressure groups and societies. Couples intending to conceive a child through surrogacy will be issued a certificate of essentiality and certificate of eligibility. The bill seeks to provide medical relief and compensation to the legal surrogate mothers. However, this compensation is only for the bare minimum expenses of pregnancy, so it is not properly compensating the surrogate mother for her labor.

Shortcomings of the Bill

The government has restricted the option of surrogacy to married couples only. Moreover, the bill bars sexual minorities and same-sex couples from having a baby through surrogacy. It probes into people’s sexual orientations, thereby violating their Right to Privacy. By banning commercial surrogacy, economically struggling women, who lend their wombs to earn a living, have been left out. Online infertile couples can opt for altruistic surrogacy instead, reducing their client base. The bill is based on orthodox values about the idea of family in which fathers should be older than mothers, and the purity of family should be maintained.

Solutions

Instead of banning commercial surrogacy, the government can lay guidelines for a minimum price or fee to be paid to the surrogate mother. Government committees can be put in charge of regulating the surrogacy contracts and protecting the interests of the stakeholders. Additionally, counselling sessions can be provided by the government to the surrogate mother and the couple. Moreover, sexual minorities, same-sex couples, and LGBTQ communities must not be restricted from having a baby through surrogacy; proper laws must be framed to protect their interests.

In conclusion, the bill will protect the surrogate mothers and children from exploitation, but still needs amendment with respect to properly compensating surrogate mothers and the rights of sexual minorities.