The Silent Feature of Surrogacy (Regulation) Bill 2016             

The Bill intends to regulate the surrogacy in India. India has become hub for surrogacy because it is economically cost effective compare to other Nation. Further it is poor and backward woman who generally agrees to become surrogate mother and they are exploited.

Section 2 (a)

Defines “assisted reproductive technology”; it is attempts obtain a pregnancy by handling or manipulating the sperm or the occyte outside the human body, and transferring the gamete or embryo into the reproductive tract.

Only registered assisted reproductive technology clinic can offer the service of surrogacy.

Section 2(d)- defines Couple

 Couple means two persons living two together and having a sexual relationship that is legal in India. It means that couple need not be married because living relationship is recognized as legal in India. Even though the proviso uses ‘couple’ word as“two persons”, it implies one male and another female. But recently Supreme Court in National Legal Service authority v. Union of India held that Third Gender is also person under the Article 14 and 21 of the Constitution. Obviously   whether third gender person can avail this right is debatable.

Section 2(f)-defines Surrogacy,                                                                                

         Surrogacy means it is an agreement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belongs to her or her husband with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate. Surrogacy agreement can be entered even with bachelor woman because it has used the word ‘woman’ but not as a married woman. Section 2(g) defines Surrogacy Agreement

Surrogacy agreement means a contract between the ‘person’ availing the assisted reproductive technology and the surrogate mother. After reading both definition of surrogacy and surrogacy agreement, it can be inferred that even either male or female bachelor can enter into surrogacy agreement with surrogate mother because surrogacy agreement used the word ‘person’ not as a couple. Further it prescribes that surrogate mother has to hand over that child to either person or persons. Obviously whether the surrogacy right should be given to married couples, living together couples or bachelor is subject matter of debate.    

Section 3-

Empowers Central Government in consultation with state governments establish a National Board for Regulation of Surrogacy which highest authority in India to supervise the surrogacy in India. It has the power to make rules in respect of surrogacy. National Board consists of Ministry of Health and Family, Indian Council of Medical Research and ten women representatives who are having special knowledge medical, technology and human rights.  National Board shall establish its office at every district.

Section 5

            Every assisted reproductive technology clinic shall apply for registration with Nation Board established in District. Every clinic has to forward information in respect of surrogacy to Board every month including the names of couples surrogacy mother and copy of the agreement. 

Section-6

                       This section mandates that any couple who intends to seek surrogacy must inform the office of National board including name of clinic, surrogate mother and copy of surrogacy agreement. This section compounds the problem whether the surrogacy right is available to couple or person because it uses the word “couple”  Surrogacy Agreement must provide for the expenses of the medical test, treatment, food, health insurance, compensation and other requirements of surrogate mother from the date of agreement to delivery of child to ‘biological parents’ as per the medical advice. Here again the bill has used the word ‘Biological parents.’ The bill should have used the word couple consistently; in some section it used the word person, couple and parents.

Section 7

                       Empowers the surrogate mother to receive consideration for becoming surrogate mother and mandates that all the expenses of surrogacy have to be incurred by the couples.  

Section 8 & 9

                       This section empowers the married woman to become surrogate mother unless she is not less than 21 and not more than 35 years. Further the section mandates that surrogate mother must have two children from her marriage. The surrogate mother should have obtained the consent of her husband for surrogacy. No woman shall become surrogate mother more than four live births including her two children. This section classifies woman into married and unmarried woman. The Bill does not prohibit the unmarried woman to become surrogate mother but she is not subjected to these restrictions. In case of unmarried woman she can become surrogate mother at the age of 18 years itself. Further unmarried woman can become surrogate mother for four times because she does not have her own two children. Further irony that unmarried woman can get married and have her own children. In fact object of the Bill is to safe guard the family of surrogate mother first that’s why it has mandated the surrogate mother to have her two children from her marriage then she can think of other family’s children. This object is likely to be defatted if unmarried woman is allowed to become surrogate mother without any restrictions.

Section-11

                       Surrogate mother shall relinquish all parental rights over the child.

Section -12   

                       Child after attaining age of 18 years can ask about any information excluding personal identification about his or her genetic parent or parents or surrogate mother. Further this section indicates that single parent can go for surrogacy child because it uses the word either parent or parents.

Section-13

                       Section mandates that foreign couple must appoint local guardian who is responsible for taking care of surrogacy and surrogacy mother. Local guardian must take insurance coverage until child is delivered to foreign couple including health of surrogate mother. Further foreign couple must provide letter from their embassy that their country permits surrogacy and issues visas to such surrogate child to enter their country.

The bill is facilitative in nature not penal. Therefore it does not contain any kind of punishment.