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Can the Surrogacy Bill find the right balance?

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Policy makers need to carefully, and more importantly, humanely balance the rights of surrogate mothers, hopeful parents as well as unborn children

Stung by criticism that India has become a ‘womb-for-hire’ hub, policy makers are seeking to tighten the laws governing surrogacy. The Surrogacy (Regulation) Bill, 2018, a revamped version of the 2016 bill, cleared the first hurdle on December 19 with a nod from the Lok Sabha. It now needs to be green-lighted by the Rajya Sabha followed by the President of India, to be notified as an Act.

Media reports have highlighted how surrogate mothers are most often from the economically disadvantaged sections of society. Barely literate and mostly from tier 2/3 towns, most see surrogacy as a way to secure the future of their children and family. But do they understand the health risks of multiple surrogacies? Are they adequately protected both on the legal and medical fronts? Are they inadvertently part of the child trafficking business? And what are the rights of the unborn child, should the intended parents divorce before the child is born?

Given this context, the amendments seek to ban ‘commercial’ surrogacy by putting in place conditions in favour of ‘altruistic’ motives. The clause to restrict surrogacy to close relatives and one surrogacy per lifetime are a step in the right direction. Moreover, the couple has to be childless, Indian (ruling out foreign nationals), married for five years and heterosexuals.

However, the feasibility of these clauses is another matter. Firstly, the definition of ‘close relative’ is a grey area. Secondly, today’s average Indian family is no longer a traditional, large close-knit clan which was the norm earlier. The underlying message seems to be that if the surrogate and intended parents are related, there will be no exchange of money. Thirdly, the parents-to-be cannot back out at any time during the surrogacy or after the birth. While the intention to protect the surrogate as well as the unborn child is laudable, the method thus seems out of touch with reality.

No one would argue against the bill’s move to register surrogacy clinics, both existing and new, or the ban on advertisements/promotions of these clinics or the practice of surrogacy. The rules will also include insurance coverage for the surrogate mother for 16 months, which will cover post-partum delivery complications. This will be a boon for surrogates as reports have highlighted how such health concerns are not being adequately addressed currently. The amendments also allow the surrogate to change her mind at any time before implantation of the embryo in her womb. The surrogate mother needs to give her written informed consent in the language she understands, which will add another layer of protection.

The amendments specify that only childless  couples married for five years qualify for surrogacy. The five year wait is apparently to prove infertility but experts point out that tests can today prove the same in a much shorter time. Same sex couples see these clauses as moral policing against their sexual choices.

The bill seems noble on paper but as always, a lot will depend on its implementation. Once the bill becomes law, central and state governments will have to appoint surrogacy boards at the national and state level within three months. These boards will regulate surrogacy, right from registration of clinics, ensuring the pre-conditions for conducting surrogacy are met (i.e. certifying the couple’s eligibility for surrogacy due to proven infertility, certifying that the intended surrogate meets the set criteria on health and being a mother herself, etc) to authorising abortions during the surrogacy.

Policy makers should understand that too much regulation will force surrogacy to go underground, putting genuine stakeholders at the mercy of unscrupulous touts. They need to carefully, and more importantly, humanely balance the rights of surrogate mothers, hopeful parents as well as unborn children.

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