Explained | The Surrogacy (Regulation) Bill: What Will Change?

The health minister had referred to the bill as 'progressive' and aimed at 'curbing the exploitation of women'.

The Surrogacy (Regulation) Bill, 2020 was enacted on Saturday, 25 December after receiving the presidential assent. Image used for representative purposes. 

(Photo: The Quint/Kamran Akhter)

The Surrogacy (Regulation) Bill, 2020, which prohibits commercial surrogacy but allows altruistic surrogacy, was enacted on Saturday, 25 December, after receiving the presidential assent.

Speaking on the passage of the bill in the Parliament, Health Minister Mansukh Mandaviya had described the 'long-pending' bill as 'progressive' and said that it aimed at 'curbing the exploitation of women'.

So, why did it take so long for the bill to be tabled? And what are some of the debates still encircling its passage? Here is all you need to know.

The Turbulent Road to Enactment

Both the Assisted Reproductive Technology (ART) Bill and the Surrogacy Bill, were once a consolidated legislation – dealing reproductive medical practices.

In light of the pressure from women's groups to pass a legislation to regulate the unmonitored surrogacy industry, the Surrogacy (Regulation) Bill, 2016 was introduced in the Lok Sabha but the Rajya Sabha subsequently blocked the passage of the bill, relegating it to a Parliamentary Standing Committee for deliberation.

In 2017, a one hundred second report by the Rajya Sabha suggested progressive changes to the old legislation, paving the way for the Surrogacy (Regulation) Bill, 2019.

These changes included a push of more bodily autonomy for women, including the right to partake in commercial surrogacy and/or compensation for the surrogate. The report had noted:

"There is no doubt that as of today there is a potential for exploitation and the surrogacy model that exists today can and does exploit surrogate women. But this potential for exploitation is linked to the lack of regulatory oversight and lack of legal protection to the surrogate and can be minimised through adequate legislative norm-setting and robust regulatory oversight."

Subsequently, the Union Cabinet cleared the amended legislation, the Surrogacy (Regulation) Bill 2020, on 26 February last year.

What Does the Bill Propose?

The Surrogacy (Regulation) Bill, 2020 proposes to establish a National Surrogacy Board involved in policymaking at the central level, and state surrogacy boards and appropriate authorities acting as executive bodies in states and Union territories.

Further, the legislation seeks to outlaw commercial surrogacy and only allow 'altruistic surrogacy' or surrogacy that involves no additional monetary compensation to the surrogate mother.

Commercial surrogacy, which refers to the act of surrogacy for financial benefits and involves compensation beyond medical expenses and insurances during pregnancy, is barred by way of this legislation.

Another clause listed indicates that the couple seeking a child born out of surrogacy should be married for at least five years.

While the newest piece of legislation has not been made available in the public domain yet, the 2019 bill had elaborated upon the eligibility criteria for the surrogate mother and the 'couple' opting for the procedure.

As per the 2019 bill, surrogacy was only permitted when it was:

• For couples who possess a 'certificate of essentiality' that indicates they are proven to be infertile

• Altruistic

• Not for commercial purposes

• Not for producing children for sale, prostitution, or other forms of exploitation

• For any condition or disease specified through regulations

Further, the criteria listed for the individuals looking to be parents was:

• Heterosexual couple with a man between the ages of 26 and 55 years, and a woman between the ages of 25 and 50 years

• Married for a period of at least five years

• Should have no other biological, adopted or surrogate children (unless the child is mentally/physically challenged or has a life-threatening disorder)

The law also forces the surrogate to be a close relative of the couple, between 25 and 35 years of age.

Hindering Autonomy & Excluding LGBTQ+ Community

The legislation has received the ire from various sections of the civil society, that have criticised it for being a 'needs-based' rather than a 'right-based' legislation.

Even government officials have censured the law for restraining women's autonomy over their bodies.

Opposing the prohibition of commercial surrogacy, Independent Rajya Sabha MP from Assam, Ajit Kumar Bhuyan, had stated in the Rajya Sabha:

"The ban on commercial surrogacy is another example of how out of touch lawmakers are with ground realities. You say this is an attempt to curb exploitation, but in fact you are curtailing the rights of woman surrogates by removing the commercial component. Is she meant to provide these services free of cost?"

Moreover, the bill has also been accused of being discriminatory towards members of the LGBTQ+ community and unmarried couples, with BJD’s Dr Amar Patnaik and Bhuyan elucidating that the legislation contravenes the 'right to reproductive choices' under Article 21 by excluding some sections of the society.

"What happens to unmarried people and the LGBTQ community? Many countries allow surrogacy. The Supreme Court has said that the right to reproduce is a fundamental right in the 2016 judgement in Devika Biswas vs Union of India case – restricting the bills to heterosexual couples is in contravention to this," The Indian Express quoted the MPs as saying.

What Are the Offences Laid Down Under the Law?

Offences under the 2019 bill are as follows:

• Practice of commercial surrogacy, resulting in imprisonment extending to ten years and fine up to Rs ten lakh

• Abandonment, dis-ownership or exploitation of the child born out of surrogacy, resulting to a jail term of up to ten years and fine up to Rs ten lakh

• Exploitation of the surrogate mother, resulting to a jail term of up to ten years and fine up to Rs ten lakh

• Sale, import or trade of human embryos or gametes for the purpose of surrogacy, resulting to a jail term of up to ten years and fine up to Rs ten lakh

• Carrying out sex selection, also resulting in a jail term of up to ten years and fine up to Rs ten lakh

(With inputs from IANS, Indian Express and India Today.)