Surrogacy is not any more hidden pearl it becomes an ideal choice for the couple who is having a tough time to conceiving a baby. But in recent time India has emerged as a surrogacy hub for couples from different countries and there have been reported incidents concerning unethical practices, exploitation of surrogate mother. The 228th report of the Law Commission of India has also recommended for prohibiting commercial surrogacy and allowing ethical surrogacy to the needy Indian citizens by enacting a suitable legislation.
The Union Cabinet has given its approval for introduction of the "Surrogacy (Regulation) Bill, 2016".
The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories. The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples.
All infertile Indian married couple who want to avail ethical surrogacy will be benefited. Further, the rights of surrogate mother and children born out of surrogacy will be protected.
The major benefits of the Act would be that it will regulate the surrogacy services in the country. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on the fulfillment of certain conditions and for specific purposes. As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.
Who are eligible for surrogacy:
In order to be eligible, the couple intending to commission a surrogacy arrangement must be a close relative( The Bill does not define the term close relative) of the surrogate mother. In addition, the couple has to prove that they fulfill all of the following conditions:
They should be Indian citizens who have been married for at least five years.
They are in the age group of 23-50 years (female partner) and 26-55 years (male partner).
A medical certificate stating that either or both partners are infertile.
They do not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness.
A court order concerning the parentage and custody of the child to be born through surrogacy.
Who can be a surrogate mother:
The surrogate mother, apart from proving that she is a close relative of the couple intending the surrogacy, also has to prove all the following conditions:
She was or is married and has a child of her own;
She is 25 to 35 years old;
She has not been a surrogate mother before;
She possesses a medical certificate of her fitness for surrogacy.
The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.
The intending couple and the surrogate mother can undergo a surrogacy procedure only at surrogacy clinics that are registered with the government. To initiate the procedure, the couple and the surrogate mother need to possess certificates to prove that there are eligible. These certificates will be granted by a government authority if the couple and the surrogate mother fulfill all the conditions mentioned above. The Bill does not specify a time period within which the authority needs to grant the certificates. Further, the Bill does not specify a review or appeal procedure in case the application for the certificates is rejected.
The penalty for performing Commercial surrogacy:
The Bill specifies that any person who takes the aid of a doctor or a surrogacy clinic in order to conduct commercial surrogacy will be punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees. Offenses such as
Undertaking or advertising commercial surrogacy;
Exploiting or abandoning the surrogate mother or child; and
Selling or importing human embryo or gametes for surrogacy will attract a minimum penalty of 10 years and a fine up to 10 lakh rupees.