Practicality of The Surrogacy Regulation Bill

Parents aren’t the people you come from. They’re the people you want to be when you grow up.

– Jodi Picoult

Parenthood is perhaps the most challenging yet also perhaps the happiest time of an adult’s life. An experience of a lifetime which we all look forward to with equal amounts of trepidation and excitement. But what if nature or other untoward circumstances render it difficult or impossible for you to conceive a child? At such a time, would surrogacy ever be an option you may want to explore? Or would you be in favour of adoption? The recent bill passed by the Lok Sabha regarding surrogacy may not leave you with much of a choice.

Surrogacy is an assisted reproductive technology or an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child’s parent(s) after birth. The most common type of surrogacy being performed right now is gestational surrogacy wherein an embryo created by in vitro fertilization (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy has several forms, and in each form, the resulting child is genetically unrelated to the surrogate:

- The embryo is created using the intended father’s sperm and the intended mother’s eggs;
- The embryo is created using the intended father’s sperm and a donor egg;
- The embryo is created using the intended mother’s egg and donor sperm;
- A donor embryo is transferred to a surrogate.

Surrogacy can also be classified into – Commercial and Altruistic. Commercial surrogacy is when the surrogate carrier receives monetary compensation, while in altruistic surrogacy generally a close relative/ family member of the couple acts as the surrogate carrier and receives no monetary compensation for the same and only her medical expenses and health insurance-related charges are provided for by the couple. Commercial surrogacy was very popular in India since the time of its introduction in 2002, especially among foreign couples, who used to visit the country to avail of the commercial surrogacy facilities here.

However, the Surrogacy Regulation Bill, 2019 permits only couples, married for at least five years and who cannot conceive a child naturally to opt for surrogacy. Also, the Bill allows only altruistic surrogacy by a woman who is a close relative and genetically related to the intending couple. It also specifies that the surrogate carrier should be a married woman between the age of 25-35 years, having a child of her own. The couple before being allowed to opt for surrogacy will have to prove their inability to conceive a child by medical documentation and reports. This law makes it illegal for a large number of celebrities such as Shah Rukh Khan, Amir Khan, Tushar Kapoor, and Sohail Khan to opt for surrogacy in order to have children!

The regulations stipulated in this Bill have thrown up a huge debate among medical professionals and researchers. While there is unanimous agreement that the lack of regulations earlier had led to a lot of unethical practices in many surrogacy clinics, at the same time most are finding the current regulations restrictive and regressive to science.

At present, statistics show that India has 22-23 million infertile couples, and the total fertility rate has declined from 3.9 in the 1990s to 2.3 in 2013. For many of these couples, surrogacy could be a viable option. However, finding a surrogate carrier who is genetically related and open to undergoing altruistic surrogacy could prove difficult, considering the social fabric of the world we are living in. Finding a consenting female family member, fitting the above criteria, ready to bear the physical and emotional burden of a pregnancy would be nearly impossible for most.

Secondly, the list of medical conditions stated in the bill due to which the couple may be unable to conceive is not comprehensive. Women suffering from conditions like uncontrolled diabetes, hypertension, which are not absolute contraindications for pregnancy but still pose a risk for the mother and child. Such couples may wish to choose surrogacy, but the bill may not provide them with a provision for the same. Also, modern society in India has an increased prevalence of single men and women who do not wish to marry but wish to parent a child. However, the Surrogacy Regulation Bill does not account for both these scenarios.

Thus, while the idea of regulating surrogacy in India is praiseworthy, all the above-mentioned aspects need to be looked into and provisions made to allow the increasing number of infertile couples to choose surrogacy if that is their preferred choice. Single men and women and same-sex couples should also be able to avail of assisted reproductive technologies such as surrogacy.

At the same time, if you examine the other end of the spectrum, the population of India below the age of 6 is 158,789,28. Out of these, 25 million children are estimated to be orphaned in India. Sadly, adoption in India is consistently less than 6000 children per year. Thus, the chance of an orphaned child being adopted and having the opportunity to grow up with his/her adopted family in a safe and secure home is abysmal in India. If stricter surrogacy laws encourage infertile couples to think of adoption, this would definitely be of service to society. After all, like any other relationship, the parent-child relationship is more a matter of emotional bonding and trust rather than genetics.

As they say, “ Family is not defined by genes, it is always built and maintained through love.”

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