“You may shoot me with your words,
You may cut me with your eyes,
You may kill me with your hatefulness,
But still, like air, I’ll rise!”
Poetry by Maya Angelou
The world is at war with its girls and women, who are traumatized in less visible ways than by tanks, bombs, and tyrants. The persecution begins innocuously enough: it takes place in secret, inside families, with females being locked up in their own houses. One such kind of oppression that persists in India, according to UN-backed research published in 2012 by the Delhi-based Sama Resource Group for Women and Health, India’s surrogacy industry is worth more than $400 million per year, with 3,000 fertility facilities spread across the country. On July 15, 2019, an occurrence took place in which Dr. Harsh Vardhan, Minister of Health and Family Welfare, proposed the Surrogacy (Regulation) Bill, 2019 in the Lok Sabha has finally been passed by the Rajya Sabha on December 8, 2021. In the Bill, surrogacy is defined as a process in which a woman gives birth to a child for an intended couple to hand the child over to the intended couple after the delivery. Although the introduction of this Bill was not unforeseen as a similar matter was raised with the introduction of the Bill on November 21, 2016, in the Lok Sabha. However, The Standing Committee on Health and Family Welfare investigated it and issued a report on August 10, 2017. The Committee made many suggestions regarding the following. First, commercial vs. altruistic surrogacy. Second, the ramifications of using a close relative as a surrogate. Third, gamete donation restrictions, and Fourth, abortion legislation. The 2016 Bill, however, expired with the dissolution of the 16th Lok Sabha.
The Bill aims to prohibit commercial surrogacy (Surrogacy for profit comprises remuneration (in cash or in-kind) provided to the surrogate mother that exceeds the pregnancy’s reasonable medical expenditures.). However, altruistic surrogacy is permitted (The couple does not pay the surrogate mother any remuneration other than the medical and insurance costs associated with the pregnancy in an altruistic surrogacy agreement.). In 2005, surrogacy provisions were regulated by the Indian Council of Medical Research (ICMR), under which the surrogate mother would be entitled to monetary compensation, the value of which would be determined by the couple and the surrogate mother, according to the rules. The surrogate mother cannot give her egg for the surrogacy and must abandon all parental rights to the surrogate kid, according to the criteria. The Indian Statute Commission suggested banning commercial surrogacy, permitting altruistic surrogacy, and adopting a law to govern surrogacy issues in 2009.
According to the Surrogacy (Regulation) Bill, 2019, Surrogacy is legal when it is used for the following reasons:
First, intended couples with proven infertility;
Third, not for commercial purposes;
Fourth, not to produce children for sale, prostitution, or other forms of exploitation; and
Fifth, any condition or disease specified by regulations.
Moreover, a ‘certificate of essentiality’ and a ‘certificate of eligibility should be granted by the competent authority to the intended couple. This certification will only be provided if one or both members of the intending couple are proven to be infertile, and the order of parentage and custody of the surrogate child passed by a Magistrate’s court. Furthermore, the insurance coverage for 16 months covers postpartum delivery complications for the surrogate.
The certificate of eligibility is given to the intending couple only if they are Indian citizens and have been married for at least five years; they are between the ages of 23 and 55 (wife) and 26 to 55 (husband); they do not have any surviving child (biological, adopted, or surrogate); and they do not have a child who is mentally or physically challenged or suffers from a life-threatening disorder.
Moreover, the Bill also sets the eligibility criteria for surrogate mothers by an appropriate authority. According to that, the surrogate mother must be a close relative of the intended pair, a married woman with a kid of her own, 25 to 35 years old, have only been surrogate once in her life, and have a certificate of medical and psychological competence for surrogacy. Surrogate mothers cannot donate their gametes for surrogacy. Under this Bill, the central and state government will appoint at least one or more authorities within 90 days of this Bill becoming an Act to grant, suspend or cancel the registration of surrogacy clinics. Moreover, the authorities can enforce standards for surrogacy clinics and investigate and take action against breach of the provisions of the Bill. They can recommend modifications to the rules and regulations as well. Surrogacy clinics must be registered with the appropriate authority before they may perform surrogacy treatments. Clinics have 60 days from the date of the competent authority’s appointment to apply for registration.
The National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) will be established by the national and provincial governments, respectively. The NSB’s responsibilities include advising the central government on surrogacy policy, establishing a code of conduct for surrogacy clinics, and overseeing the operation of SSBs.
A child delivered through a surrogacy operation will be considered the intended couple’s biological child. Abortion of the surrogate child needs the surrogate mother’s written agreement and the approval of the authorized authorities. The Medical Termination of Pregnancy Act of 1971 must be followed for an order for this authorization to be valid. Furthermore, before the embryo is deposited in the surrogate mother’s womb, she will have the choice to withdraw from surrogacy. Furthermore, The Bill makes it illegal to engage in or promote commercial surrogacy, exploit the surrogate mother, abandon, exploit, or disown a surrogate child, and sell or import human embryos or gametes for surrogacy. Such offenses carry a punishment of up to ten years in jail and a fine of up to ten lakh rupees. For additional violations of Bill’s provisions, the Bill includes several offenses and punishments.
For many years, the country has been one of the few countries where commercial surrogacy is permitted, with Russia, Ukraine, and a few states in the United States. However, the practice’s ethics have been questioned for some time, and a ban on all commercial surrogacy is now on the horizon. The restriction is part of a new bill that, if passed, would make surrogacy unavailable to LGBTQ couples and single women. These new limits have been attacked by activists, who claim they are part of Prime Minister Narendra Modi’s conservative ambition to legally define “family” in conventional meanings. While lawmakers say that the sector abuses poor women, experts fear that the prohibition would cut off one of their few avenues out of poverty, especially as COVID-19 continues to wreak havoc on India’s economy and drive the market underground.
In conclusion, Although, This regulation aims to address some of the issues surrounding surrogacy, it abuses poor women as the prohibition would cut off one of their few avenues out of poverty.
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