Last week the Union Cabinet passed the draft Surrogacy (Regulation) Bill that allows only married childless couples to have a baby through surrogacy and bans commercial surrogacy, among other proposals. In an email interview, Health Minister J P Nadda says, “The Bill is likely to be placed before Parliament in the next session.” Excerpts:
The Assisted Reproductive Technology (ART) Bill, which dealt with many ills of the infertility industry, dealt with surrogacy, too. Why couldn’t it be passed in totality instead of merely taking out surrogacy?
There was an urgency to introduce surrogacy regulation now because of the number of complaints from affected persons, the number of Parliamentary assurances and a PIL in Supreme Court asking the government to urgently take steps to control unethical practices in surrogacy. The proposed Bill has provisions pertaining to (a) wide range of assisted reproductive technologies. The ART Bill will look into all other aspects of infertility industry as and when introduced.
There are some estimates that 2,000 babies are born in India through surrogacy. How many cases did you look at when framing the law?
No systematic study of children born through surrogacy has been performed. However, there is a study conducted by the NGO SAMA about surrogate mothers, their socioeconomic profile and understanding of surrogacy. There are documented cases of children being abandoned, one twin being left behind, child not getting visa in parent’s country, etc. There are also many court cases filed by women cheated in the process. The National Commission for Women has also received numerous complaints.
Many surrogate mothers are asking why the government did not discuss the issue with them.
The provisions of the draft Bill was put on public domain through the website of the Department and comments were invited. The Bill was widely consulted with ministries, state governments and stakeholders, including doctors/women’s (rights) activists/NGOs/civil society, public, etc. All suggestions were examined before finalising the draft Bill. Since it (surrogacy) is an unorganised sector, it was not possible to take individual inputs separately.
Many countries you are making an example of – to support the ban on commercial surrogacy – recognise homosexual couples and their right to employ surrogates. Why is the government being selective?
As per existing provisions of the Bill, surrogacy facility is available only to legally married Indian couples. The issue of recognition of homosexuality in India is under examination of the courts.
By insisting on close relatives as surrogate mother, don’t you think you will accentuate social ostracisation of infertile women by “exposing” them?
The provision of only close relatives being allowed to volunteer has been added to ensure that the surrogate mother is not exploited and that it is truly altruistic…. She will be a part of the larger family and will go for surrogacy out of concern and goodwill.
Many doctors say they will not touch surrogacy cases for fear of punitive measures. If you could not implement ICMR (Indian Council of Medical Research) guidelines on surrogacy — which is why the law was needed — what do you propose to do to prevent the entire surrogacy business from going underground?
The Bill is to regulate surrogacy in the country. Doctors are welcome to provide altruistic surrogacy facilities as per provisions of the Bill. The ICMR guidelines on ART treatment are independent of provision of the Surrogacy Regulation Bill, 2016. The intention of the Bill is to ensure there is no commercial surrogacy (and) violation of provision of the Act shall attract strict penal action as per relevant section of the Bill. Guidelines cannot be enforced unless there is legislation.
Will surrogate mothers be entitled to the enhanced maternity leave? What about compensating the number of workdays lost?
A surrogate mother will be entitled to all benefits, including maternity leave, as per the law. The compensation for the number of workdays lost, etc will be provided as per rules (to be framed) and will be included in the insurance coverage.
The Bill allows singles to adopt children but not to have a baby through surrogacy. Is there an element of morality creeping into lawmaking here?
In surrogacy, the main issue is that a third party is involved and (who) is being put to some risk in order to satisfy a man or woman’s need for a child. Adoption gives a baby a chance for a family and a good life; biological risks for woman are avoided. Moreover, a single parent needs a donor for oocytes and sperm from a third party, which may lead to legal complications and custody issues at a later stage.
Couples married for two years can adopt but to have a baby through surrogacy they have to wait for five years. Why?
The five-year window has been provided to married couples to ensure that the option of having a child through natural means and through ART treatments have been exhausted.