Commercial Surrogacy in India

Introduction

Commercial surrogacy refers to compensated surrogacy, whereby the surrogate mother is given some amount of compensation to carry a child in her womb in addition to reimbursement of everyday medical costs. After a debate of almost two years, the Surrogacy (Regulation) Bill was passed in 2019 declaring Commercial surrogacy to be illegal.

What is Surrogacy?  

Surrogacy is a process in which an intending couple hires or appoints a woman who is agreeing or willing to bear their child in her womb, provided the former would be the child’s parents after birth. Surrogate mother as defined in the Bill is “a woman bearing a child (who is genetically related to the intended couple) through surrogacy from the implantation of the embryo in her womb”. 

Surrogacy can be of the following two forms:

• Traditional surrogacy: In this form of surrogacy, the surrogate mother is the egg donor and the intended father or any anonymous man is the sperm donor. Hence, the child is genetically related to the above mentioned donors.
• Gestational surrogacy: In form of surrogacy, whereby the surrogate mother is not the egg donor. The intended mother or the egg donor and the intended father or the sperm donor, relate the child genetically. With the advent of in vitro fertilization (IVF), this is the most common arrangement made.

Further, there are two main types of surrogacy:

1. Altruistic surrogacy: In this type of surrogacy, the surrogate mother does not receive any monetary compensation apart from medical expenses and insurance. The surrogate mother is generally a close friend/family friend acting out of sincere help without any materialistic greed.  
2. Commercial surrogacy: In this type of surrogacy, the surrogate mother is rewarded with monetary compensation for her services along with her medical expenses and insurance.

Problems faced due to Surrogacy:

• It involves a lot of risks to the health of the baby.
• The health of the woman is a serious issue of concern.
• Surrogate mothers are often exploited.
• Abandonment of a child by the intending parents due to child of undesired sex or deformed/disabled child, and any such condition.
• After abandonment, the surrogate mother is refused to be paid.
• Catholicism does not allow surrogacy.   
• Women take up commercial surrogacy, generally to earn their living and clear their debts, thus, converting it into a business by risking their lives by subsequent surrogacy.

The Surrogacy (Regulation) Bill, 2020:

• The Bill prohibits Commercial surrogacy but permits Altruistic surrogacy.
• The registration of Surrogacy clinics shall be suspended or cancelled lest they are registered by the appropriate authority.
• Ethical surrogacy’s conditions as defined in the Bill shall be:
• Either or both members of the couple are suffering from proven infertility.
• That it is only for altruistic surrogacy purposes.
• That it is not for commercial surrogacy purposes.
• That it is not for producing children for sale, prostitution, or any other form of exploitation.
• The National Surrogacy Board and the State Surrogacy Board or the Union Territory Surrogacy Board will be constituted which shall discharge their powers to monitor the implementation of the provisions and perform the functions conferred on the Board under this act.
• It is mandatory for the intending couple or woman to obtain a certificate of recommendation from the Board in such a manner as may be prescribed.
• A certificate of essentiality, i.e., proven infertility of either or both intending parents is required.
• The Regulation Bill of 2020 deleted the term “infertility” which was defined in the previous bill as incapacity to conceive after five years of unprotected intercourse. The Committee held it as inappropriate for the couple, to wait for a period of 5 years, who could not conceive.
• Sex selection of the child is prohibited and the new born child out of surrogacy shall be entitled to all the rights available to a natural child.
• Abandonment of a child born out of surrogacy by intending parents is strictly prohibited under any condition.
• Prohibition of storing human gametes for surrogacy purposes.
• In case of abortion of a surrogate foetus, only the consent of the surrogate mother is enough.
• Insurance of the surrogate mother and the surrogate child by the intending parents is compulsory.
• Any contravention of the provisions of this Bill shall be an offence punishable in accordance with law. 
• Any person seeking commercial surrogacy shall be punishable with an imprisonment of 5 years along with fine which may extend up to five lakh rupees. Any offences which were subsequently performed shall be punishable with an imprisonment of 10 years along with fine which may extend up to ten lakh rupees.

Eligibility Criteria for the Surrogate Mother:

• Age of the woman should be between 25 to 35 years.
• A married Indian woman who has a child of her own.
• A woman can be a surrogate only once in her lifetime.
• She should not receive any kind of monetary compensation or reward from the intending couple.
• She shall possess a certificate that states her medical and psychological fitness for surrogacy.
• She cannot provide her own gamete (egg) for surrogacy.

Eligibility Criteria for the Intending Parents:   

• Only an Indian married couple of Indian origin or a single Indian woman (divorced or widowed) can be the intending parent(s).
• They should not have a child of their own.
• Either or both members of the intending couple shall have proven infertility.
• Age of the intending mother should be 23-50 years and that of the intending father should be 26-55 years. 
• Certificate of eligibility, essentiality and recommendation issued by the appropriate authority to the intending couple is required.

Conclusion:

Summing up, after the legal ban on Commercial surrogacy, there are a lot of drawbacks pointed out by different people. One of the major drawbacks is the unavailability of surrogacy for the LGBTQIA+ community, live-in couples, singles, and divorced or widowed men. The Bill also limits eligibility to a great extent.