CRITICAL ANALYSIS OF

THE
SURROGACY REGULATION BILL,
2019

WHAT IS SURROGACY
MRINMAY KUSHAL
Critical analysis of the Surrogacy Bill
17A088 1
 INTRODUCTI
ON
The proposed draft surrogacy regulation Bill, 2019,
passed by the health ministry is set to be introduced in
the Parliament soon. Within a span of one week of
releasing the draft, it received severe backlash, being
cited as discriminating and draconian.
Although JP Nadda had mentioned that there is scope
for some improvements in the bill, he also said that the
clauses relating to “exploitation of women and
children” will not be touched.

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REASONS BEHIND THE
BILL

Commercial surrogacy in India was legalised

in 2002 and this sowed the seeds for a
booming surrogacy industry in India. The
present value of the surrogacy market is
US $ 2billion. Couples from all over the
world, especial from countries where
commercial surrogacy or surrogacy itself is
banned (France, Germany) come to India
3
for this.
Anand in Gujarat is considered as a baby farm that
provides surrogate mothers and all those services
required for surrogacy. This agency has women
who have been surrogate mothers for about 8
times in exchange for money. The agency costs
between 10,000$ and 28,000$ for a complete
package which is about one third of the cost in
UK. But the surrogate mothers only get 25% of
this.
In 2014, a single mother wanted to earn some
money. So she went to an auto driver who was
an agent of the agency in Anand and he hooked
her up with them. She became a surrogate
mother for a German couple.
4
’,
After deducting all the commissions, she finally
received only 4% of the entire sum paid. This was
one of the reasons for the proposition of the new
bill.
Another reason is that the techniques used in India
for surrogacy are not reliable. A woman in Gujarat,
passed away while she was undergoing a
procedure for egg donation.

5
The main reason for the
introduction of the bill is the case of
UOIBaby
and following
Manjhi Yamada
that thev.228th
Law commission report.

6
 Important features of
the BIll
’,
1) Either one of them must have proven infertility.
2) Egg donation is banned
3) Only married Indian couple can participate
4) Single, NRI, Live-in, Foreigners,
Homogeneous couples can’t.
5) Couple must have been married at least for 5 years.
6) Only altruistic surrogacy.
7) Only a relative can be a surrogate mother.
8) A woman can be a surrogate mother only once.
9) Female 23-55 and Male 26-55.
10) Couples who already have a child can’t have a
surrogate child unless the first child is physically o7
 no pay and only
once
• *Limiting a woman’s surrogacy choice to only one time is in a large way limiting the income of those who

survive on this business. Again, it comes down to the issue of consent. If a woman willingly consents to being a

surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited

to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The

issue here seems to be that the woman is “exploited” for her body. And this too, is a legitimate issue. Just as in

the case of sex work, when a woman is coerced into the business because she has no choice, and because she

desperately needs the financial resources, it does not mean that she has fully consented to the job. It means that

she has not been provided, or is not able to find, alternate employment to sustain herself. However, if she is

consenting and is being paid the proper amount, then this should not be an issue at all. In certain European

countries, sex work is fully regulated and sex workers have full constitutional rights, unlike in India. Similarly,

surrogacy laws should be set out in such a way that there is full consent of the woman in question. Here, instead

of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is

eliminate the idea entirely.

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 only a close relatIVe
*Thenecessity of only a relative being
a surrogate mother limits the possibility
surrogacy to a very large extent,
of
especially since most times, surrogacy
becomes the very last option a couple
chooses. It will be very difficult to find a
relative who will be willing to be a
surrogate mother. This might pave
the way to force ghter-in-laws
dau to become
a surrogate mother fora couple in
matrimonial the e against her will.
hom 9
only one chIld
*Although it makes sense to not allow couples
who already have a baby to have a surrogate
child, allowing a couple with a mentally or
physically challenged child to go for
surrogacy may result in neglect of the first
child who actually needs more attention.

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 Where is Article 14 in
All this
*The Bill is highly discriminatory and against
the very tenets of “equality”, as
discriminates between it married
unmarried couples, between heterosexual and
and homosexual couples, between single
parents and double parents, between
divorcee and non-divorcee, between foreign
couples and Indian couples. The
Court has considered live-in relationships
Supreme
that have been for a considerable duration to
be marriage like and the DV Act also
something similar. Hence the Bill can be
does
found to be a little archaic in its view. 11
DissinG the QUeer
cOMMUnitY
The Adoption laws have been broadened to
include single parents in their ambit. But the
2019 bill leaves them out.
One of the most contentious points of the bill
is
its blatant ban on surrogacy rights of
homosexual couples. This is the first time that
the government’s transparent homophobia
has
come out in the open. Sushma Swaraj very
clearly stated that surrogacy for homosexuals
is against “Indian ethos”, although
homosexuality has been constantly mentioned
in various Indian texts. Now, even though this
ban could be construed as
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a mere following of the law (Section 377
against “unnatural” intercourse), this
would only make sense if heterosexual
couples also violating the section
were denied surrogacy rights.

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 BlAck MArket

The bill a blanket ban on commercial

imposes
surrogacy which is very similar to the
Transplantation of Human organs Act, 1994 that
imposes a ban on commercial organ donation. If
surrogacy is banned, a black market will surely
emerge where middle-men would reap the
financial benefits and women would lose both
income and access to adequate prenatal care just
like in the case of Kidney donation.

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 AGe BArrier
The age limit is 22 to 55 for women and 26 to 55 for
men. Does this mean a couple in which the woman
is 21 years old and the man is 25 years old can’t
have a child? If they can get married in 18 and 21,
why can’t they have a child?

Another issue that grabs our attention is the condition

that the couple should have been married for a
minimum of 5 years to opt for surrogacy. If a couple
gets married at 30 and realize that one of them is
infertile, will they have to wait till they turn 35 to
have a kid?

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 ConClusion
The bill seems to do more harm than good. Although
formulated to curb the exploitation of women and trafficking
of children; again, it exhibits the general policy of a state
banning or censoring an activity almost completely, instead
of looking at ways to use laws to regulate and improve the
situation. While most countries, especially in Europe, only
allow altruistic surrogacy, surrogate mothers are not limited
to relatives, and medical expenses are covered. It can be
said that although India has not banned surrogacy
completely (like Germany, France and Italy), the laws need
to be re-looked so that they actually benefit surrogate
mothers, prospective parents, and children born from
surrogacy.

Pokemon Go and Right to Panorama 16

Thank you..
Pokemon Go and Right to Panorama 17