Parliamentary Standing Committee Recommends Wide-Ranging Changes To The Surrogacy (Regulation) Bill, 2016 [Read the Report]

The Surrogacy (Regulation) Bill, 2016, which was referred to the Parliamentary Standing Committee on Health and Family Welfare, suffers from serious infirmities, if the 102^nd Report on the Bill, presented to the Rajya Sabha, and laid on the Table of the Lok Sabha on August 10, is any indication.

The report begins stating that the potential for exploitation of surrogacy is linked to the lack of regulatory oversight and legal protection to the surrogate and can be minimized through adequate legislative norm-setting and robust regulatory oversight.

Economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner;   Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary, the report says.

In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid.  However, the surrogate mothers are expected to practice altruism. Therefore, it is far removed from the ground realities, the report suggests.

Altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism.   The Bill’s emphasis on altruistic surrogacy, therefore, baffled the Committee.

Adoption cannot be an alternative to surrogacy. In the name of adoption, the Government cannot take away the reproductive rights of couples to have a biologically related child through surrogacy, the report further states.

The compensation for surrogacy must be commensurate with the lost wages for the duration of pregnancy, medical screening and psychological counseling of surrogate; child care support or psychological counseling for surrogate mother’s own child/children, dietary supplements and medication, maternity clothing and post delivery care, the report has recommended.

The committee has further recommended that in case the surrogate mother dies in the course of surrogate pregnancy, or while giving birth to the surrogate child, additional compensation should be given to the kin of the surrogate mother.

The amount of compensation should be fixed by relevant authorities and the compensation so fixed should not be the subject matter of bargain between the commissioning couple and the surrogate mother, another recommendation has reasoned.

Surrogacy should not be allowed as a profession.  No woman can become a surrogate more than once, according to the Bill.  This has been endorsed by the report.

The committee was told by the stake-holders that restricting it to only Indian married couples is discriminatory and violative of the right to life, personal liberty, reproductive autonomy and right to equality guaranteed to all persons under the Constitution of India.  But the committee is not in favour of extending the option of commissioning surrogacy to foreign nationals, who it says, choose India because the procedure is much cheaper here.  However, the committee disagreed with the Bill’s denial of eligibility to NRIs, PIOs and OCIs cardholders, who are of Indian origin.   The committee has recommended that the intending couple should provide a specific declaration or a NOC that the child born out of surrogacy would be getting the same citizenship rights as possessed by the intending couple.

The committee has recommended that all intending couples should have the right to go for second chance at surrogacy in case of any abnormality in the previous child irrespective of the fact whether the abnormal child is born through surrogacy or by other means.

The committee has recommended a comprehensive insurance cover for the surrogate mother covering even the after effects of surrogacy.

A period of six years of medical insurance cover along with life insurance of a certain sum of money for the surrogate mother needs to be determined to cover any health complications that may occur long after delivery, the report suggests.

Social security insurance for the surrogate child in the event of death of commissioning parents during the process of surrogacy or divorce during the process of surrogacy is another suggestion of the committee.

Maternity Benefits to the surrogate mother as well as the intending mother as both of them are involved in child birth and child rearing respectively, is another constructive suggestion from the committee.

The committee also wants the Bill’s silence on gamete donation to be addressed, as in case of one of the commissioning couple being infertile, the gamete will be required to be donated by somebody.  Gamete donation will also take the requirements of wodows and divorced women into account, the report reasons.

The Committee also favours bringing the ART Bill before the Surrogacy (Regulation) Bill, 2016, for regulating ART clinics which will be dealing with surrogacy.

The Committee has suggested that the Bill be modified to require that the appropriate authority, envisaged should state categorically the reasons for permitting abortion within a specified time-frame taking into account the consent of the intending couple and the physical well-being of the surrogate mother.

Another recommendation of the committee is to permit storage of embryos on the lines of the ART Bill, 2014.

The Bill unreasonably discriminates and denies the rights of the live-in partners to surrogacy.  A mechanism should be established which can incorporate everyone in the ambit of surrogacy regulatory framework, the report says.

The committee was told by stakeholders that restricting the people to commission surrogacy on the basis of their marital status, would be violation of human rights.

The Bill’ s condition of childlessness as one of the eligibility criteria to commission surrogacy has been criticized.  There is no one child policy in our country, and therefore, this condition of childlessness may be removed from the Surrogacy Bill, the report says.

The Bill imposes extended time period of five years of non-conception before commissioning surrogacy.  Experts and stake-holders have criticized it saying that the five-year waiting clause is violative of the right of reproductive autonomy.

The report rightly points out that the failure to conceive is only one of the reasons for adopting surrogacy.  Strangely, the Bill discriminates, and imposes the five year waiting period only to the infertile couples.   Couples who are healthy and free from medical complications, need not wait for five years.  In the present context of late marriage, further delay of five years would adversely affect the quality of gametes of couples or render the couple’s gametes less viable, the report has pointed out.

The Bill disqualifies single parent from eligibility for surrogacy, because single parent needs a donor for oocytes and sperm from a third party which may lead to legal complications and custody issues at later stage.   The Bill also disqualifies live-in partners, because they are not bound by law and safety of the child born through surrogacy.

The committee has observed that by prohibiting widows and divorced women, the Bill has closed its eyes to ground reality, as the social status of a woman is judged by her reproductive life and there is a lot of pressure on her for child bearing.

The committee has, therefore, recommended that Bill should broadbase its eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, divorced women/widows.

The committee has disfavoured the Bill’s requirement for certificate of infertility from an appropriate authority.  Instead, medical reports and prescription of the couple certifying repeated failures in conception or inability to carry the baby to full term should be allowed as a proof for their decision to commission surrogacy, it has suggested.  A specified time frame for issue of essentiality certificate, and provision for appeal are other suggestions.

The committee has recommended that a registry at the national level be kept with details of the registration and conduct of every surrogacy clinic, surrogacy arrangements, including its stakeholders, taking place across the country.

The bill’s lack of clarity about offences like human trafficking, abduction or inter-country movement of surrogate mother or child for surrogacy purposes, has come in for criticism by the committee.  The Bill’s failure to prohibit sex selective surrogacy has also been criticized by the committee.

The committee is chaired by Prof.Ram Gopal Yadav, and includes 10 Rajya Sabha Members including him, and 22 Lok Sabha Members.

The report is likely to lead to a debate on the Bill’s provisions both within and outside Parliament.