Surrogacy Bill’s missteps

Surrogacy Bill’s missteps

Is the prohibitory approach, adopted by the Surrogacy (Regulation) Bill 2016, really the best way to protect the rights of surrogates and their children in India?

By approving the Surrogacy (Regulation) Bill 2016 in August, the Indian government has effectively banned commercial surrogacy in the country. In essence, the Bill allows only heterosexual Indian couples who have been married for five years, and have a demonstrable history of infertility to become commissioning parents and use surrogacy services. In addition, the commissioning parents cannot pay any woman to become a surrogate but must persuade a close family member to do it altruistically for them. The chain of events, which led to this ban, reveals why the government decided to forgo a billion dollar industry instead of simply regulating it. The Bill's text itself tells us a bit about the present government's assumptions about legitimate parenting and families.

Surrogacy scandals

The year 2015 witnessed a flurry of activities around commercial surrogacy in India. In October 2015, an affidavit was placed before the Supreme Court, which, in a nutshell declared that the Indian government "does not support commercial surrogacy" and the scope of surrogacy would be now limited to "needy Indian married couples only". This ban on commercial cross-border surrogacy fell in line with the government's previous attempts, in 2012 and 2013, to limit the availability of the commercial surrogacy option to married couples of Indian origin. The ban, however, was a complete antithesis of the Regulatory Guidelines laid out over a decade ago by the Indian Council of Medical Research (ICMR), an institution under the Ministry of Health and Family Welfare (MoHFW) – guidelines that most clinics offering assisted reproductive technologies have been expected to abide by, till now.

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Himal Southasian