Cabinet approves draft Bill to tighten surrogacy laws

The government on Wednesday approved the Surrogacy Regulation Bill, 2016, aimed at banning commercial surrogacy completely but permitting “altruistic” surrogacy under strict rules. The draft law will now be introduced in the winter session of Parliament and referred to a parliamentary standing committee to facilitate consultation with a wider set of stakeholders. External Affairs Minister Sushma Swaraj said the draft law will have “far reaching consequences”.

The Cabinet on Wednesday approved the Surrogacy Regulation Bill, 2016, aimed at banning commercial surrogacy but permitting “altruistic” surrogacy under strict rules.

The draft law will now be introduced in the winter session of Parliament and referred to a parliamentary standing committee to facilitate consultation with a wider set of stakeholders. External Affairs Minister Sushma Swaraj, who had headed the group of ministers on the issue, said the draft law would have “far reaching consequences”. She said the need for a law to regulate the business of ‘renting a womb’ was felt for some time, because several incidents had come to light where the surrogate mother wasn’t provided for after the birth of the child or where surrogate girl children or those born with disabilities were abandoned.

The government had recently said in the absence of a statutory mechanism, surrogate pregnancies have been reported even from rural and tribal areas, leading to exploitation of women by unscrupulous elements. Swaraj said there were, according to one estimate, 2,000 surrogacy clinics across India where this business has prospered. “What is happening is against the laws of nature and only to mint money,” she said.

The minister also pointed out how having children through surrogacy has become a “fashion” for some. “There are instances where celebrities with children have gone for surrogacy and of cases where women have taken recourse to surrogacy to save themselves from labour pains.”

According to the draft law, only legally wedded heterosexual couples, who are not only citizens of India but are residents of India, can have a child through surrogacy. But, they would have waited five years after their marriage, and should be able to medically prove that at least one of them is unable to have a child and that they do not already have a child, including an adopted one. The surrogate mother has to be a close relative. She should be married and should have given birth to at least one healthy child previously. A woman can be a surrogate only once in her life, the draft law said. A woman seeking a surrogate child should be between 23 and 50 years and her husband should be between 26 and 55 years. A surrogate child would have equal inheritance rights as a biological or adopted child, Swaraj said.

Foreigners, non-resident Indians, live-in couples, homosexuals and single parents would not be allowed to have a child through surrogacy. Neither will those who already have children. All surrogacy clinics have to be registered. There is a provision of 10 years imprisonment and up to ~10lakh fine for abandoning a surrogate child or mistreatment of a surrogate mother.

Dr Shivani Sachdev Gour, an in-vitro fertiliation (IVF) specialist, said, “This is a black day in the history of surrogacy. Probably policymakers didn’t know how surrogacy can benefit.” She said she opposed the ban but was in favour of regulation. The Bill also envisaged setting up a National Surrogacy Board and state surrogacy boards and appropriate authorities in the states and Union territories. The national board will be headed by the Union health minister, and will have the health secretary and three women members of Parliament as members.

India is estimated to have a multi-billion-dollar commercial surrogacy market.