A Pregnant Pause And Child Rights

In the wake of the staggering prevalence of practicing overseas commercial surrogacy in India,the Surrogacy (Regulation) Bill, 2016 was proposed in Lok Sabha in the last week of November 2016. It defines surrogacy as a practice where a woman gives birth to a child for an intending couple and agrees to hand over the child after the birth to the intending couple. This bill will be tabled in the budget session of Parliament, commencing from January 31, 2017 onwards. Introduced with the objective of legalising domestic and altruistic surrogacy, it seeks to eradicate the exploitation of the surrogate mother and her child for amoral purposes.

Previously, as there was no law regulating surrogacy in force, India grew as a surrogacy hub for foreign couples.The country had become the ‘surrogacy capital’ of the world by 2012, with surrogacy tourism being estimated at $500 million annually. Cases of unethical practices, abandonment of the child and exploitation of surrogate mothers were on the rise. It was under this context that the Surrogacy Regulation Bill was proposed.

Women falling in the age group of 23-50 and men between the age of 26-55 are eligible to opt for surrogacy. The Bill permits only childless heterosexual Indian couples, who have been married for at least a period of 5 years to turn to fertility treatment. The surrogate must be a close relative who carries the child out of altruism and a woman can be a surrogate mother only once in her life. The Bill disallows couples who already have children from opting for surrogacy,unless the surviving child is mentally or physically challenged or suffers from a fatal illness. Besides, under no circumstances whatsoever can the surrogate mother be paid for bearing the child. However, payment can be made towards any and all medical expenses. The Bill bans commercial surrogacy and excludes single persons, divorcees, NRI’S, widowers, foreigners, same-sex couples and live-in relationship partners from its ambit. 

The bill neither mandates surrogacy agreements nor the recording of the reciprocal promises made between the surrogate mother and the couple. It naturally follows then that if once the child is born, a surrogate mother declines to hand over the child to the couple, the arrangement that subsisted between the parties becomes unclear in the absence of any legal recourse. In turn, this would give rise to lengthy custody claims surrounding the surrogate child.

The prerequisite stipulated of choosing a close relative to be the surrogate mother itself is cumbersome and drastically reduces the possibility of availing surrogacy. Essentially problematic, it poses an issue to all those couples whose only option is surrogacy. The Bill accords stringent penalties for a list of offences but overlooks sex-selective surrogacy wherein the couple decide to have a child of a pre-determined gender. Likewise, it misses out on the offence of trafficking or abduction of the child carried out under the guise of altruistic surrogacy. While it stresses on tackling the ‘exploitation of the child,’ it fails to elucidate what exploitation entails.

There was previously no law in place to address the sensitive topic of surrogacy and regulate the Indian surrogacy industry. Nonetheless, this Bill heavily falters in championing the interest of the surrogate child. It neither addresses the matter of breast feeding of the child nor whether the surrogate child is entitled to any informationregarding his or her parentage. It fails to envisage a screening process of the couples before going ahead with surrogacy.The bill prescribes insurance for the surrogate mother whereas it’s silent on the sameprovision for the child.By excluding the child, the Bill has neglected situations where the couple may suffer from sickness, disability or die during the process of surrogacy, leaving the childparentless. In more ways than one, the bill turns a deaf ear to crucial child concerns.It does not consider situations where the couple may be unable to take immediate custody of the child. Although the previous Bill envisaged conditions for appointing a local guardian, the proposed Bill is unclear on who would take care of the well-being of the child up until he or she is safely received by the commissioning couple.

What requires immediate attention is the imminence of controlling the unregulated surrogacy market so as to champion the surrogate mother’s interests and the child’s rights. At this stage, the Bill seems to have neglected the interest and welfare of the child. Presently pending enactment, there is a crying need to revaluate the Bill and safeguard as well as endorse the child’s interests. Issuing a blanket ban in a sensitive matter as this is has a lower chance of success. The bill calls attention towards revisiting and revising the rights of all stakeholders in line with the social, legal as well as the ethical context of this matter. For the formation of an effective regulatory framework, the Bill requires a reassessment in accordance with extant legal rights and international conventions.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.