Above: The Bill aims to regulate surrogacy in India/Photo: UNI

The Surrogacy (Regulation) Bill, 2019 seeks to ban all forms of commercial surrogacy and women who agree to be surrogates must do so for “altruistic” reasons and must be “close relatives” of the recipients

Dr KK Aggarwal

The Surrogacy (Regulation) Bill, 2019, which was passed by the Lok Sabha in July, has now been sent to the select committee of the Rajya Sabha for a review. The Bill seeks to put a complete ban on commercial surrogacy, while placing stringent regulations on altruistic surrogacy. The fact that it has been sent to the select committee means it still requires thorough debate. Excerpts from the Bill:

Preamble: To constitute National Surrogacy Board, State Surrogacy Boards and appointment of appropriate authorities for regulation of the practice and process of surrogacy and for matters connected therewith or incidental thereto.

“Surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;

“Altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;

“Commercial surrogacy” means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative;

“Couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively;

“Intending couple” means a couple who have been medically certified to be an infertile couple and who intend to become parents through surrogacy;

“Surrogate mother” means a woman bearing a child (who is genetically related to the intending couple) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4;

When Surrogacy Is Permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv)not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.

“Insurance”—an arrangement by which a company, individual or intending couple undertake to provide a guarantee of compensation for specified loss, damage, illness or death of surrogate mother during the process of surrogacy.

Insurance coverage: This is the amount as may be prescribed in favour of the surrogate mother for a period of 16 months covering postpartum delivery complications from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority.

Surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions:

(I) no woman, other than an ever-married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;

(II) no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act;

(III) no woman shall act as a surrogate mother by providing her own gametes;

(IV) no woman shall act as a surrogate mother more than once in her lifetime: Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and

(V) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner.

Eligibility certificate for intending couple: This is issued by the appropriate authority on fulfilment of the following conditions:

(I) the age of the intending couple is between 23 to 50 years in case of female and between 26 to 55 years in case of males on the day of certification;

(II) the intending couple are married for at least five years, and are Indian citizens;

(III) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier: Provided that nothing contained in this item shall affect the intending couple who have a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and (IV) such other conditions as may be specified by the regulations.

Appropriate authority: The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.  The functions of the appropriate authority include (i) granting, suspending or cancelling registration of surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and taking action against breach of the provisions of the Bill; (iv) recommending modifications to the rules and regulations.

Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy related procedures unless registered by the appropriate authority.

National and State Surrogacy Boards: The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively.  Functions of the NSB include (i) advising the central government on policy matters relating to surrogacy; (ii) laying down the code of conduct of surrogacy clinics; and (iii) supervising the functioning of SSBs.

Parentage and abortion of surrogate child: A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.

No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorisation of the same by the appropriate aut­hority concerned: Provided that the authorisation of the appropriate authority shall be subject to, and in compliance with, the provisions of the Medical Termination of Pregnancy Act, 1971.

Sex Selection: No surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall in any form conduct or cause to be conducted sex selection for surrogacy.

Offences and penalties: (i) undertaking or advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii) abandoning, exploiting or disowning a surrogate child; and (iv) selling or importing human embryo or gametes for surrogacy. The penalty for such offe­nces is imprisonment up to 10 years and a fine up to 10 lakh rupees.

Some issues continue to remain unsolved. Among them are:

1. Medical expenses: This has not been defined. Medical expenses may include home care (physical, mental, social).
2. Close relative is the surrogate mother and has not been defined.
3. The intending couple are married for at least five years and are Indian citizens. It denies surrogacy for residents of Indian origin living abroad but are close relatives. Five years is also an arbitrary figure and not based on any science.

Any registered medical practitioner, gynaecologist, paediatrician, embryologist or any person who owns a surrogacy clinic or employed with such a clinic or centre or laboratory and renders his professional or technical services to or at such clinic or centre or laboratory, whether on an honorary basis or otherwise, and who contravenes any of the provisions of the Act (other than the provisions referred to in section 35) and rules and regulations made thereunder shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to ten lakh rupees. The words of any of the provisions of this Act will include clerical mistakes and will be detrimental to the medical profession, like the Pre-Natal Diagnostic Techniques Act.

Medical doctors are covered under MCI ethics and clinical establishments under the Clinical Establishments Act. IMC Act rule 7.3 had provisions for permanent deletion of a doctor if he/she is found indulging in sex determination.

I feel the surrogacy Act can be covered under amendments of the IMC Act and ethics rules under MCI as far as involvement of doctors is concerned.

MCI Ethics rules: 7.21: No act of invitro-fertilisation or artificial insemination shall be undertaken without the informed consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in writing only after the patient is provided, at her own level of comprehension, with sufficient information about the purpose, methods, inconveniences, disappointments of the procedure and possible risks and hazards.

7.6: Sex Determination Tests: On no account sex determination test shall be undertaken with the intent to terminate the life of a female foetus developing in her mother’s womb, unless there are other absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female foetus amounting to female foeticide shall be regarded as professional misconduct on the part of the physician leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions of the Act.

On February 1, 2016, the Bombay High Court directed the Central Railway to grant maternity leave to one of its employees who became a mother by using a surrogate. A Division Bench of Justices Anoop Mehta and GS Kulkarni ruled that a mother enjoys the same benefits of maternity leave as any other working woman under the Child Adoption Leave and Rules. “There is nothing in the rules that disentitles maternity leave to a woman who has attained motherhood through surrogacy procedure,” the court added.

Who can avail of the leave? The mother or the intended mother? This is just one of the several aspects on which the Surrogacy (Regulation) Bill, 2019 remains silent.

—The author is president Heart Care Foundation of India and Confederation of Medical Associations of Asia and Oceania