The Surrogacy (Regulation) Bill 2016 discriminates against unmarried people and LGBT couples

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While the objective of the Surrogacy (Regulation) Bill, 2016 tabled in Parliament recently is mainly to regulate the surrogacy services in the country, some of its provisions indicate a blemished mechanism and lack of research and homework on the subject.

For example, it proposes questionable eligibility criteria such as: the couple should be aged between 23-50 years for females and 26-55 years for males; the couple should be legally married for five years; the surrogate mother should be aged between 25-35 years and a close relative of the intending couple. Couples with biological or adopted children are not eligible for having kids through surrogacy; overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples cannot opt for surrogacy as per the proposed legislation.

While India is moving towards a progressive society, where for example nowadays schools do not ask for the name of the father, it is unfortunate that there’s a law being contemplated to ban single parents from opting for surrogacy.

Law should always be sensible enough for people to follow. While law says that the age for a girl to get married is 18 and for a guy it is 21, the same institution is seeking to prohibit them from going for surrogacy before completing 5 years of marriage.

So a man has to be aged 26 to go in for assisted reproduction but his age for marriage is 21 years. If he has some male infertility issues, and the couple is already aware of that, the woman still cannot go in for artificial insemination or get pregnant through assisted reproductive technology (ART) right away, according to the new Bill.

As for its provision that the surrogate mother has to be a close relative of the intending couple, in this age of nuclear families, is it possible to get a relative who will offer her womb? Moreover, is it such a good idea for the surrogate to be only a close relative?

There is the emotional pressure involved in the altruistic surrogacy of any close relative, apart from the psychological implications for the child born through a

relative who could feel divided between the two mothers. It must be hard for a woman acting as surrogate to have her brother-in-law’s sperm and her sister’s egg and carry the pregnancy. The emotional upheaval that the surrogate has to go through in this case needs considerable thought.

As mentioned, this may not provide a healthy environment for the child either. Altruistic surrogacy may be more difficult to handle than commercial surrogacy. Just imagine a sister-in-law agreeing to carry a child for 9 months just to see the child being taken away after he/she is born, but the child is always in proximity, since the child continues to be a family member.

Very often in altruistic surrogacy the payment may not come in hard cash but in the form of house, car, jewellery or some such thing which could very often be a decision forced by family members. The proposed law may also result in the creation of an illegal market, where surrogate mothers are more vulnerable to exploitation.

Additionally, with its blanket ban on commercial surrogacy, does the Bill not betray a discriminatory attitude towards single parents, divorcees, widowed people, single sex couples, live-in relationship partners and others? I believe single parents, the LGBT community; in fact every human being has the right to be a parent.

Most legal experts are of the opinion that the state cannot interfere in the prerogative of a person to have children. The right to reproductive autonomy is included in the right to life. It is not for the state to decide how a child should be born. I strongly feel that one cannot bring the bedroom into the boardroom. The right to privacy is for everybody. It should be the decision of the couple whether they want to go for surrogacy or not.

Today IVF centres are mushrooming all over the country. In the absence of a National Registry, the number of infertility clinics offering ART is not known, and the quality of services and success rates at these clinics is anybody’s guess. Currently in India we have no regulatory control and it is high time the Centre passed the ART Bill.

My plea to the government is that the surrogacy Bill has to be a part of the ART Bill, as both ART and surrogacy are integrally woven together. Moreover the ART Bill has been worked upon for nearly 20 years by experts in the field of assisted reproduction; it has gone through many iterations and public debates. By contrast this separate surrogacy Bill is just a kneejerk reaction to celebrity cases of surrogacy.

To be fair, by legalising surrogacy the government is trying to pull it out of the grey area. However, it is necessary for government to look into the discriminatory clauses of the current Bill and make some necessary amendments before passing it as a law. It is important to keep in mind that surrogacy is not the first choice but the last option for aspiring parents.

DISCLAIMER : Views expressed above are the author's own.

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