Surrogate mother need not be a close relative, says panel

The 23-member panel held 10 meetings with health officials and stakeholders, including surrogate mothers and intending parents

NEWDELHI: An “intending couple” may approach any woman and not just a “near relative” to seek her consent to be a surrogate mother, a Select Committee report on the Surrogacy (Regulation) Bill 2019 tabled in the Rajya Sabha on Wednesday has recommended. This is one of the 15 suggestions made by the panel, headed by Bharatiya Janata Party (BJP) lawmaker Bhupender Yadav, after the bill was passed by the Lok Sabha last August but referred to a House panel in November following heated debates in the Rajya Sabha.

One of the main demands of the dissenting parliamentarians was to do away with a clause that stipulated that only near relatives of the couple could become surrogate mothers, as it was felt that this may encourage violations against vulnerable women in joint families, as well as narrow the pool of potential surrogates.

“The Committee finds that the term ‘close relative’ potentially restricts the availability of surrogate mother and may affect the genuinely needy persons. The Committee is, therefore, of the view that it may be removed,” the report stated.

It recommended replacing the term with “willing woman” and retained the age bracket of 25 to 35 years for the surrogate mother, as stipulated in the bill.

Another significant suggestion by the 23-member committee was that the intending couple need not wait for five years to opt for parenthood through a surrogate, as stipulated by the bill.

The Department of Health Research submitted to the committee that the intending couple needed to exhaust all means of having a child of their own with the help of Assisted Reproducintend

tive Technology (ART) , as “the joy of bearing one’s own child can never be the same as can be had through surrogacy”. It was further submitted that infertility cannot be proven in early years of marriage as sometimes conception happens even after 15 years. “That is why, a reasonable period of five years married life has been prescribed,” the report noted.

The committee, however, was not convinced with the rationale and stated that the five-year wait period was “too long, particularly in conditions like absent or abnormal uterus, irreversible damage or destruction of uterus due to tuberculosis, removal of uterus due to cancer, fibroids, etc. or for patients with chronic medical condition where normal pregnancy is ruled out and it is medically proven beyond any doubt that surrogacy is the only option”.

The committee also recommended doing away with the requirement of obtaining a certificate of proven infertility and suggested that “infertility” be dropped, and “intending couple” be defined as a couple who has “a medical indication necessitating gestational surrogacy and who

to become parents through surrogacy”.

Another concern surrounding the bill was about who qualified as “intending parents”. While the 2019 bill only permitted married couples, the panel recommended that women between the ages of 35 and 45 years, who are divorced or widowed, also be allowed to opt for surrogacy. However, this privilege remains unavailable to single men, single women, unmarried heterosexual couples, and same-sex couples.

Speaking to HT on Wednesday, Yavad said, “The committee felt that raising a child requires both adhikar and kartavya [rights and duties]. Where there is an option of marriages available, then surrogacy should not be allowed. It [surrogacy] is for those married couples who want to have children but owing to various reasons cannot.”

Though the country’s adoption rules allow single men and single women to adopt children, Yadav said that the surrogacy laws cannot be on par with it.

While the adoption law allows Persons of Indian Origin and Overseas Citizens of India to adopt, the surrogacy bill only permits Indian citizens and NonResident Indians from opting for surrogacy.

The committee held 10 meetings between December 2019 and February, deliberating with senior officers of the Department of Health Research and stakeholders, including surrogate mothers and intending parents. The committee also visited the surrogacy clinics in Anand, Hyderabad and Mumbai.

In India, commercial surrogacy was a thriving industry estimated to bring in $2.3 billion annually till the first draft of the bill was introduced in 2016 seeking a complete ban on it. Once the Rajya Sabha passes the bill, the ban will come into effect.

In commercial surrogacy, the surrogate is compensated in either cash or kind, which exceeds medical expenses associated with the pregnancy. The bill instead proposed “ethical altruistic surrogacy”, defined as one in which the surrogate is a close relative, who has been married and has had a child of her own.

Though the committee tweaked the provision of who counts as a surrogate, it strongly backed allowing only altruistic surrogacy, stating in its report: “What needs to be pondered over here is that whether such a sublime and divine instinct of motherhood could be allowed to be turned into a mechanical paid service of procreation devoid of divine warmth and affection. To preserve the sanctity attached with the ‘mother’ and ‘motherhood’ it is imperative that surrogacy is altruistic.”

The report also recommended keeping an option for compensating the surrogate mother beyond medical expenses and insurance coverage that includes taking care of her nutritional food requirements, maternity wear, and increasing the insurance cover for surrogate mothers from 16 months to 36 months. The Committee recommended that the Assisted Reproductive Technologies (Regulation) Bill, which is awaiting the Cabinet’s approval, may be taken up before the Surrogacy (Regulation) Bill. The ART bill, which primarily deals with technical, scientific and medical aspects of surrogacy, also recommends the setting up of an ART board. The committee recommended that the Surrogacy Monitoring Board and the ART board should be the same, and the Centre should appoint appropriate authorities at district levels to check exploitation of the surrogates, ensuring that it is not commercialised.