The Indian Parliament recently passed two landmark acts – the Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill – both of which will have a strong impact on Indian women’s reproductive rights and health.
Health Minister Mansukh Mandaviya said in Parliament that the idea behind the new legislation is to “regulate” and “supervise” assisted reproductive technology (ART) clinics and surrogacy and curb unethical practices related to issues like sex selection and exploitation of surrogate mothers by imposing both monetary penalty and jail terms for violations.
Although transnational surrogacy was banned in India in 2015, ART and domestic commercial surrogacy have continued to flourish with the help of entrenched networks of unvetted agents and private clinics. The new laws profess to put in place institutions like new National and State ART and Surrogacy Boards, as well as a National ART and Surrogacy Registry, to advise the government on regulation and policy matters. The Registry will also maintain a database of the ART treatments undertaken across the country to ensure transparency in such matters.
Any medical practitioner who commits an offense under the Act shall be punished with imprisonment extending up to five years and a fine of up to 100,000 Indian rupees ($1,300). The offenses are non-bailable. If a subsequent offense is committed by the same person, the practitioner shall be reported to the appropriate authority and the State Medical Council for the suspension of their registration for five years.
While the twin laws have noble intentions, and many of their provisions aim to clean up India’s hitherto unregulated surrogacy industry by bringing thousands of ART and surrogacy clinics under the ambit of the law, activists claim that they are also deficient in many aspects.
According to Ajit Kumar Bhuyan, a senior leader of the Congress, the country’s largest opposition party, the laws are “out-of-touch with ground realities.”
“In the name of regulating surrogacy to curb the exploitation of surrogates and of children born through surrogacy, what this Bill, in fact, does is curtail the rights of women surrogates,” he said. “Here, the basic but flawed assumption is that by removing the ‘commercial’ component, exploitation will be curbed.”
Bhuyan was referring to the laws’ contentious clause that bans commercial surrogacy: offering financial benefits that involves compensation beyond medical expenses and insurance during pregnancy. The new legislation permits only “ethical” or altruistic surrogacy, which will be completely free of any monetary transaction or payment to surrogates. Women activists say this clause will deprive poor women of an avenue to monetize their services as a surrogate in the absence of any other gainful employment.
The law mandates that any couple who initiates commercial surrogacy shall be punished for the first offense with imprisonment up to five years and a fine of up to 50,000 rupees and for any subsequent offense with imprisonment up to 10 years and a fine up to 100,000 rupees.
Some experts have also raised concerns over the new laws’ provisions to exclude millions of Indian citizens from accessing ART and surrogacy. Single men, cohabiting heterosexual couples, same-sex couples, and LGBTQ persons cannot access such services. This is despite the Supreme Court’s rulings that consensual sexual activity between adults of the same sex is no longer a crime. The apex court had also reiterated the need for inclusion of same sex couples in all walks of life and has confirmed that the liberty to procreate is part of their right to privacy.
“Why has the country’s highest court’s jurisprudence not been factored into the laws? What happens to unmarried people and the LGBTQ community? Their exclusion is narrow and discriminatory,” said Charu Malik of the Jagori Women’s Resource Center, a Delhi-based women’s organization.
Even for heterosexual married couples seeking a child born out of surrogacy, the activist added, the new laws list long and tedious criteria. “For instance, the provision that couples seeking surrogacy should be married for at least five years is an attempt at curtailing their freedom to start a family earlier if they so wish,” Malik said.
Additionally, the couple has to include a man between the ages of 26 to 55 years and a woman of 25 to 50 years of age. Both have to be Indians, and should have no biological, adopted, or surrogate children (unless the child is mentally or physically challenged or has a life-threatening disorder).
The criteria for anyone opting to be a surrogate mother states that the woman in question must be married (at least once in her life) and should have her own child. She should be between 25 to 35 years of age and a close relative of the couple opting for surrogacy. Any woman agreeing to be a surrogate cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness.
The bill also lays down specific eligibility criteria for both the couple opting for surrogacy and the surrogate mother. The couple in question is required to have a “certificate of essentiality,” which includes a certificate of proven infertility of one or both persons, a court order on the parentage and custody of the child born through the surrogate, and insurance coverage for the surrogate mother for 16 months, including for post-partum delivery complications.
“Instead of making the new laws pioneering legislations that had the power to create an inclusive and egalitarian society, the law makers have ended up creating contentious regulations that are likely to attract litigation in courts and hurt the very women they intend to protect,” said Delhi-based lawyer and activist Sansrkiti Taneja.
The expert fears these drawbacks may also contribute to the development of an illegal, informal market in egg donation and surrogacy services. “Any time the law overstretches itself by brushing aside rights of stakeholders, it invariably creates a thriving grey market for the very services it seeks to regulate,” Taneja said.
“More likely, the new laws will create rather than solve the problems the government intended to address.”