I have been asked the same question several prospective intended parents, surrogate mothers and Doctors. One of my clients also came to telling that her Doctor refused to continue with the treatment since she thought that the Bill is enforceable. I am writing this blog post to answer this question.

When will this Surrogacy Bill, 2016 become a law? Is it legal to go for surrogacy right now?

A Bill is not a law. A Bill is a document that would be considered by the Parliament to become a law. As far as the Surrogacy Bill, 2016 is concerned, the copy of the Bill has not been released but only the policy statement of the government has been released. According to the latest reports from the Government, the Government is still is accepting comments on this Bill and there is no clarity on when this Bill would be passed. The following are few pointers from the Bill:

  • Only allowed the altruistic surrogacy to be allowed meaning that the surrogate mother cannot be compensated/paid for carrying the child.
  • Only Indian nationals who are married for atleast a period of 5 years can take up surrogacy arrangement.
  • Foreign Nationals cannot take up surrogacy in India.
  • OCI Card holders and PIO card holders may not be able to take up surrogacy.
  • Single parents and homosexuals cannot take up surrogacy.
  • The surrogate mother must be a close relative of the commissioning couple.
  • The maximum age limit for opting for surrogacy for Intending Parents are 50 and 55 years for women and men respectively.
  • The parents who have either biological child or adopted child cannot opt for altruistic surrogacy for further expansion of their family.
  • The Surrogacy Bill proposes any violation shall be punishable by 10 years besides a fine of Rs. 10,00,000 (Rupees Ten Lakhs Only).
  • It is unclear if the Bill allows compensated egg donation.

What about already commenced surrogacy arrangements?

Surrogacy Arrangements that have already commenced should not be affected by the Surrogacy Bill. In any case, the Surrogacy Bill, 2016 is not expected to have retrospective effect. The rights of the surrogate mothers and the Commissioning Couple that has already been incurred by them by way of a surrogacy agreement must not be by the surrogacy bill. Therefore things can go as usual.

Can Commissioning Couple enter into new surrogacy agreements?

Until the Surrogacy Bill, 2016 has been passed by both houses of the Parliament and assent of the President of India has been obtained, the Surrogacy Bill does not come into effect. I would like to point out that commercial surrogacy and egg donation are perfectly legal at the moment as the bill has not been introduced in the Parliament. The Surrogacy Bill, 2016 is still in consultative process and I would request you to voice your comments and concerns to the Government to ensure that the Bill takes into account the practical aspects of the implementation of the Bill. However, till the time the Bill is passed at the Parliament, commercial surrogacy can continue to take place for Indian married couples. However foreign nationals would not be able to take up the surrogacy arrangement.

The Central Cabinet had passed the Surrogacy Bill, 2016 banning commercial surrogacy and bring in a host of other changes. I had the pleasure of airing my comments on Economic Times paper and thought it would be helpful I can post it here as well. The copy of the original article is found here.

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Banning commercial surrogacy will expose women to exploitation

The Central Government Cabinet has cleared the Surrogacy (Regulation) Bill, 2016 to be introduced in the Parliament. Mrs. Sushma Swaraj, Minister of External Affairs held a Press Conference on Wednesday, briefing the media that commercial surrogacy has to be banned in India and it shall be done through this Surrogacy Bill. Surrogacy shall be allowed only in the altruistic form and shall be available only to Indian nationals married for at least five years and are medically certified as infertile. Unrelated woman cannot act as surrogate mothers and only a ‘close relative’ of the infertile couple, not necessarily related by blood, can act as a surrogate. Homosexuals and single parents cannot take up surrogacy in India as it is against the Indian Ethos. The Press Conference also saw condemning film stars and celebrities to misuse surrogacy even after having children of their own earlier.

In a commercial surrogacy arrangement, the surrogate mother is paid to carry the child during the term of the pregnancy. In an altruistic surrogacy arrangement the surrogate mother is not remunerated; the surrogate mother usually is known to the Intended Parents and she comes forward for being a surrogate mother out of love and affection for the Intended Parents.

India is probably one of the last countries wanting to ban commercial surrogacy. After India banned Surrogacy for single and gay foreign nationals in 2012, surrounding countries like Nepal and Thailand started to offer commercial surrogacy. However, their presence was very short-lived and commercial surrogacy was banned by Nepal and Thailand within couple of years. In fact, India has been probably the only country after US to have successfully been able to offer commercial surrogacy for almost two decades now. 

The Surrogacy Bill 2016 claims to protect the interest of the poor women, who come forward to act as surrogate mothers. The question of poor woman being exploited by the rich had always found its place whenever the topic of surrogacy had been discussed.  It is important to note here that demographically, surrogate mothers usually come from lower economic strata and for these women the sum of Rs.4,00,000/- or Rs.5,00,000/- would make an unimaginable difference.

The Bill provides for altruistic surrogacy wherein close relatives of the infertile couple could act as surrogate mothers and help them have a child. Altruistic surrogacy is allowed in most countries but has proven to be not a very successful model.

For example, Australia, UK and Canada allow only altruistic surrogacy and do not allow commercial surrogacy. When India had allowed commercial surrogacy for foreign nationals, it was seen citizens of these countries flocked to India to take up surrogacy in India as altruistic surrogacy was never viable for them.

Even in India, when a doctor counsels an infertile couple for surrogacy, altruistic surrogacy is the first option that is presented to them. But in reality not many are able to choose it. The reason why altruistic surrogacy has never been successful is that the infertile couple are required to be under the mercy or sympathy of some relative who can possibly help them. It is not a transaction of equals. After all, the human right to become a parent cannot based on the sympathy a family member takes on the infertile couple’s untold misery. In close knit families such as the Indian families, the thought of having the woman who carried the child all throughout the child’s life brings in emotional complications within the family, and more importantly, into the child. But, can the miseries of the rich and affordable be a good cause to exploit a poor woman?

Surrogacy has been an unregulated arena and there is immense scope for exploitation of poor women acting as surrogate mothers. And that is the single major reason which called for the regulation of the transaction. The Intended Parents and the surrogate mothers expected the State to come up with the right platform for the surrogacy arrangement so that they can work without the scope for exploitation.  A platform where the risks of things going wrong could be diminished and where middlemen cannot unethically profit from the surrogacy arrangement. However, the remedy presented by the Government is to ban commercial surrogacy and allow only altruistic surrogacy.

The ground reality is regulating commercial surrogacy is very tough and banning it is the easiest option, but is that the only reasonable explanation to ban a very successful tried and time tested model to help childless couple and poor surrogate mothers at the same time. For a childless couple, to have a progeny is not a luxury.  It is one of the basic animal instincts of any living being.  Indian society is presently in such shape that newborn children are being stolen from hospital wards to put them into child traffic market.  So much a child is precious to an infertile couple that they would commit a crime to have that child.  In a society of this condition, would banning of commercial surrogacy be meaningful effort?  Today, when the surrogate mothers have legal rights, there are accusations of exploitation. If commercial surrogacy is banned, the Intended Parents and surrogates would be forced to operate underground with very high risk exposure.  Then the poor woman would have no legal right and the case for exploitation would be even more perfect.

Infertile couples and surrogate mothers undergo immense emotional trauma and look for achieving the best within their limited means. The move of the State must not push infertile couples and surrogate mothers to commit a legal wrong for something so basic as parenting.

As it is much known surrogacy has been disallowed for foreign nationals and even for people of Indian origin but holding a foreign citizenship. There seems no clear rationale in this decision and a lot of couples have been affected by this decision, which has been reasoned by the Indian Government to restrict commercialisation of surrogacy in India.

We have been getting regular queries from OCIs, NRIs and foreign couples who have started their surrogacy process earlier, but for some reason decided to not go forward at that point of time, and are looking to pursue the surrogacy arrangement now. The good news is that there is a slight chance that such couples might be able to move forward with their surrogacy arrangement.

This advise comes from the (iv) Para of the notification issued by Ministry of Health and Family Welfare, Government of India dated 04th November 2015. The relevant content of this notification is extracted hereunder:

(iv) However, there may be cases where – prior to issue of this letter action might have been initiated/ taken by surrogacy clinic/ART Clinic/IVF Clinics/Genetic Counselling Centers/Genetic Laboratories/ART Banks or such other clinical establishment to commission surrogacy, including import of ‘Human Embryo’ and implantation thereof into surrogate mother or child/children born from it. Such cases will be allowed to be complete the processes already started to avoid medical complications. However, all such cases will approach the State Health Authorities for permission. The State Health Authorities will decide such cases on case to case basis.

The following points can be learnt from the above notification. Firstly, couples who have earlier started the medical process for surrogacy and are having frozen embryos in India or have imported any genetic material can take advantage of this provision to complete their surrogacy arrangement.

Secondly, the appropriate authority that they are required to approach are the State Health Authority. The Notification has not been explicit about the authority, but it can be seen that the Notification has been addressed to Secretaries of Health and Family Welfare of all the State Governments. The Authorities would be required to submitted with a legally drafted representation for them to consider and order on the same.

We have come across several cases where the couples had approached FRROs instead of the State Health Authorities. The FRRO are instructed not to provide approval for all cases involving foreign nationals seeking surrogacy in India. I would recommend that couples who have earlier started the medical process such as having frozen embryos in India can approach the state health authorities seeking such permission and it shall be considered on a case-by-case basis. I would also emphasise that you seek legal help to draft your application to the State Health Authority in order to ensure application would stand in a court of law, if so needed.

In a sudden move, the Government of India represented to the Supreme Court that the Government is not support of surrogacy for foreigners and looks for banning the same. The Government of India, in a hurried move, released information to the Press that it looks for disallowing commercial surrogacy for foreign nationals on late evening prior to the hearing. Also, the Indian Council for Medical Research sent out the following notification to all ART Clinics requesting them not the “entertain” foreign nationals for surrogacy. The communication is found below:

The Government also submitted to the Supreme Court that it reversed the Notification that allows free import of gametes into India from foreign nations except for research purposes although no specific notification is found to that effect.

The Government made the above representations to Supreme Court in the hearing of Public Interest Litigation (PIL) filed by Advocate Jayashree Wad by impleading herself in the Jan Balaz Case (German Couple’s Case). In the last hearing of the same case about 2 weeks back, the Supreme Court had asked the Government to come out with clarity as to how it plans to regulate commercial surrogacy and had asked 14 specific questions on the subject-matter. I am informed by my sources that the Supreme Court expressed its displeasure in the manner by which the Government had careless and hurriedly decided the matter that is subjudice. The case is to be listed next month.

In my personal view, the stand taken by the Government is rather rash and unwary.

Government moves on a matter that is subjudice

The foremost concern is that the Supreme Court was considering various issues related to commercial surrogacy for both domestic and international couples. The Supreme Court had infact gone deep into the matter, trying to ascertain what are the rights of the donors, biological parents and the surrogate mothers and had posed 14 specific questions on the matter asking for the Government’s view on the same. The Government had tried to clear avoid the issue on hand and moved to stop commercial surrogacy for foreigners as an escape route, rather than addressing the issue. The Government even failed to answer the fourteen questions that were posed by the Supreme Court.

Consultative processes disturbed

The Government had asked for opinion/comments on the Assisted Reproductive Technology Bill, 2014 which has been published by the Government. The first reaction of the stake-holders was that the allocated time of 45 day to submit the opinion or the comments was too less to read into the intricacies of the issue on hand. Now, the Government has made the whole consultative process a mockery by disallowing commercial surrogacy for foreign nationals. It is sad to see that the Government has least regard to the opinion the public on the matter of Third-Party Reproduction by decisions that significantly affects the lives of many childless couple.

 

What is the state of the embryos that are already in India?

The Government had submitted to the Supreme Court that the Notification that allowed import of human embryos has been reversed and that human embryos can no longer be imported into India, except for the purposes of research. With this move, the Government stomps on the hope of several families who are in the process of surrogacy. The Indian Ministry of Home Affairs had been issuing “medical visa for surrogacy” even immediately prior to this decision on 27th October 2015. Several foreign couples are in India with valid medical visa at the moment in the process of the surrogacy arrangement. What is the state of the parents who are in the process of surrogacy? What is the status of the embryos that are already in India waiting to be transferred? The Government has a lot on its head to answer now.

National Commission for woman surrogacyThe National Commission for Woman has given its opinion on the Assisted Reproductive Technology (Regulation) Bill, 2014 as part of the consultative process in consultation with the Ministry of Law and Indian Council of Medical Research. The two core recommendations are that commercial surrogacy must be allowed only for Resident Indian Nationals and that a woman must ed to be a surrogate mother irrespective of the marital status.

Surrogacy only for Indian Nationals
The National Commission for Woman has recommended for ban on foreigners, including PIO and OCI on taking up surrogacy in India as part of the consultative process in the opinions on bill. The Assisted Reproductive Technology (Regulation) Bill, 2014 does not allow commercial surrogacy for foreigners, but allows PIO and OCI to take up commercial surrogacy. The reasoning given by the commission is that it would curb commercialization of surrogacy. In my opinion, allowing surrogacy for foreigners and Overseas Citizens of India does not in any manner commercialize surrogacy than what it already is. Surrogacy arrangement/agreement is a private transaction between two parties, the surrogate mother and the intended parents. There is no need for a governmental interference thereby limiting the right of the parties to transact with one another.

Single Woman be surrogate mothers?
Surprisingly, the Commission recommended that single woman, irrespective of their marital status must be allow to be surrogate mothers. If only married woman can be surrogate mothers, it would restrict the reproductive autonomy of a woman is the reasoning, which seems quite unacceptable. We have always recommended that the surrogate mother must have been married, begotten children for herself and must have completed her family. This would facilitate the surrogate mother to return to her family after handing over the child to the intended parents. Medically also, it is a prerequisite that the surrogate mother has proven fertility, which would mean that she has earlier pregnancy. If the surrogate mother has not had children earlier, she would not know what to expect out of a pregnancy and might find it difficult to cope up with the process.

Supreme Court of India questions Government on Surrogacy

The Union of India found itself in a precarious position unable to explain to the Supreme Court of India on how it plans to monitor surrogacy in India. The Apex Court of India expressed displeasure against the Government while hearing the Public Interest Litigation (PIL) filed by Advocate Jayashree Wad by impleading herself in the Jan Balaz Case (German Couple’s Case) that has been pending before the Supreme Court. The case had been filed by a German Couple who were unable to take their child back to Germany as their country did not allow surrogacy. With the addition of this PIL, the scope of the case has snowballed into a larger issue.

The Government of India has been trying to come out with legislation governing commercial surrogacy from the year 2008. The Indian Council for Medical Research has been consulting stake-holders and Non-Governmental Organisations to understand the issues related to surrogacy and Third Party Reproduction. The latest version of the Bill was released by the Ministry of Health and Family Welfare on 30th September 2015 is titled “Assisted Reproductive Technology (Regulation) Bill 2014”.

The Supreme Court posed pointed question the Government on various issues to relating third party reproduction:

  1. Whether in commercial surrogacy the surrogate mother is the only mother of surrogate child? The Petitioner raises this issue in view of the pain and suffering the mother undergoes for 9 months and the risk along with all the psychological and emotional problems.

  2. Whether a lady who donates her egg in connection with a commercial surrogacy mother can be said to be mother?

  3. Whether both “surrogate mother” and “genetic mother” (who has donated the egg) can both be said to be mother of the surrogate child.

  4. Whether commercial surrogacy involved sale of a child in view of the fact that surrogate mother relinquishes her parental rights for money?

  5. Whether commercial surrogacy amounts to renting of a womb?

  6. Whether commercial surrogacy is immoral and is opposed to public policy and therefore void u/s 23 of the Contract Act. 3

  7. Whether commercial surrogacy as practiced in India amounts to economic and psychological exploitation of surrogate mother?

  8. Whether commercial surrogacy is inconsistent with the dignity of Indian womanhood and therefore violative of Article 21 of Constitution?

  9. Whether commercial surrogacy involves trafficking in human beings as it involves sale of a surrogate child, relinquishment of the surrogate’s parental rights for money and involves rent of womb thus violating Article 23 of the Constitution.

  10. Whether commercial surrogacy should be prohibited?

  11. Whether import of human embryo amounts to commoditisation of human life and thus violates article 21? Whether notification dated 2.12.2013 of the GOI issued under S.5 of the Foreign Trade (Development & Regulation) Act is violative of Articles 21 & 23?

  12. Whether human rights of a surrogate child born out of commercial surrogate are violated and as such child would face psychological & emotional problems.

  13. Legal system does not seem to have answer to the following questions:

(a) What happens if surrogate dies during child birth?

(b) What can surrogate do if commissioning couple refuse to take child on the ground that it is abnormal of physically/mentally challenged.

(c) Case when surrogate refuses to hand over child.

(d) remuneration of surrogate.

(e) Who will bear the medical bills if surrogate falls ill.

(f) What happens to unused eggs or embryos and who supervises their fate.

(g) Should surrogacy arrangements be disclosed to 4 child. If so, when?” The learned Solicitor General who was not available on the previous dates of hearing is in Court today and has submitted that the proposed Bill i.e the Surrogacy (Regulation) Bill, 2014 is undergoing the consultative process at present and he anticipates a period of three months for the process to be over.

Concern over import and Export of Gametes

The SC also expressed concern over the 2013 Notification published by the Government of India that allowed import and export of embryos. Whether human embryos are being sold was the concern of the Supreme Court. The Supreme Court also questioned what is the basis of allowing surrogacy for foreigners.

The Supreme Court expressed displeasure in the way the Government of India was viewing surrogacy and wanted to know the view of the Government on an array of issues including those listed above. The next hearing of the case is scheduled to be on October 28th 2015.

Surrogacy Swizz Federal CourtA Swiss Court has ruled against a same-sex couple to be considered legal parents of the child born through surrogacy in US. The Couple who had registered their partnership in the US were recognised as legal parents of the child born though surrogacy as per the US law. But once the couple returned to the Switzerland in 2014, the Switzerland Federal Court ruled against acknowledgement of both the parent to be legal parents of the child. Though same-sex marriages are legal in Switzerland, surrogacy is not. It seems that the adoption by a same-sex couple is also not permitted as per the existing laws in Switzerland. That would mean that the parenting by a same-sex couple is prohibited, although their relation can be registered legally. In a country that allows euthanasia, the use of assisted reproduction is highly restricted disallowing egg or sperm donation for ethical reasons. The decision of the court echoes the displaced moral high-grounds that is followed by many European states that do not allow surrogacy. When a country believes in same-sex union, the parenting by the couple must also be seen no differently. The views on surrogacy can be debated, but the Court cannot rule against the recognition of the same-sex parents only because the child was born surrogacy.