Points of contention in surrogacy bill

Source: Hindustan Times dated 02.12.2019

-- Bhadra Sinha
The bill to ban commercial surrogacy has several loose ends and the 23-member Rajya Sabha select committee to which it has been referred for further scrutiny will discuss and try to rectify the shortcomings to avoid legal complications that are likely to arise if it is notified in its present form, experts say.

The government faced stiff opposition in the Upper House on November 20 when Union health minister Harsh Vardhan proposed the bill for passage on November 21. It prompted a motion by the minister to refer the bill to the select committee following a voice vote.

The Surrogacy (Regulation) Bill, 2019, seeks to allow altruistic surrogacy in cases where the surrogate mother is a close relative who has been married and has had a child of her own.

The proposed bill bans monetary exchanges except for paying for necessary medical expenses. Several Rajya Sabha members sought amendments in certain provisions, including the removal of the term “near relative”, with a clear mention of who, within a family, can be a surrogate. They also wanted the removal of the period of a minimum of five years before couples could opt for surrogacy, as many may not want to wait that long to start a family.

Advocate Radhika Thapar Bahl said the bill in its present form prohibits surrogacy. “Surrogacy law is intended to build families. Altruistic surrogacy confined to families will lead to a new form of domestic violence as families would force the women of the house to surrogate a child for a childless couple, ” Bahl said.

Viewpoints differ though.

“It can lead to trafficking of women and also give rise to unregulated commercial surrogacy. Women in families will not come forward to bear a child for someone else,” said Manasi Mishra, head of research at the Centre for Social Research. Not defining the two words “close relative” renders the law incomplete, she said.

The bill is also in conflict with the adoption law and Medical Termination of Pregnancy Act (MTP), experts claim.

“While the adoption law permits a single mother to adopt, the surrogacy bill prohibits it since only infertile couples are allowed to go for a surrogate child. What if a single woman does not want to get married but is keen to have a surrogate child. The bill is silent on this,” Bahal says.

Also, while the MTP law allows a pregnant woman to abort within 12 weeks, on the advice of one doctor, the surrogacy bill permits a surrogate mother to abort only after getting approval from a statutory board to be set up as per the regulations. Further, the bill is silent on who will have the discretion to abort the baby – the surrogate mother or the couple seeking a child.

According to Mishra the bill does not say in explicit terms that there should be a strong agreement between a surrogate mother and the couple seeking to adopt a child. “Even in altruistic surrogacy the terms of an agreement should be clear to avoid litigation in future,” she says.

“Also, what interim measure should be taken in case the child is abandoned,” Bahl says.

Members had raised concern on the provision which allows a close relative to act as a surrogate to couples who have been legally married for at least five years.

The bill fails to provide immediate relief in case a child is abandoned. It is silent on who shall have the discretion — the surrogate mother or the couple seeking a child — to abort the baby in case of complications during pregnancy. The bill requires couples opting for surrogacy to seek a certificate of proven infertility.

The panel comprising BJP’s Rajya Sabha MP Bhupendra Yadav and Congress MP Jairam Ramesh, has to submit its report by the last day of the last week of the next session.