Recently, Lok Sabha passed Surrogacy (Regulation) Bill 2016 on 19th December 2018. As the name suggests the bill was needed for the regulation on the Surrogacy. But there are certain provisions in the bill which are again serving the treat to an orthodox mindset of Indian Society.
Surrogacy is an arrangement whereby an intending couple commissions a surrogate mother to carry their child. Prior to this regulation bill, there were various types of surrogacy out of which Commercial Surrogacy was the most prominent one. But after the commencement of this bill, only Altruistic Surrogacy is valid in India which implies that only ‘close relatives’ can be the surrogate mother and being altruistic in nature no expenses other than the medical expenses would be paid to such mother.
Who can adopt through Surrogacy?
Heterosexual couples married for at least five years can take the support of Surrogacy to have a child.
As Surrogacy needs to be Altruistic in nature so the Surrogate mother has to be the ‘close relative’ specifically and no other women.
Although the bill is named as a regulation bill rather it’s a bill inflicting the virtues of ‘Orthodox Authoritarian State’ which is trying to teach the citizens that how and who can adopt a child through Surrogacy. Some provisions of the bill are ignorant about some sections of society. Use of word ‘Heterosexual Couple’ directly hinders the right of the LGBT community to adopt a child through surrogacy. Moreover, use of the word ‘couple’ with Heterosexual restrains the right of widow, widower, and single parent to use surrogacy for having a child. And also after the 2005 judgment of the Supreme Court ‘live-in’ relationships are valid in the sub-continent of India but the provisions of the bill only talk about the adoption through Surrogacy for ‘Married’ couple.
Also, under this bill, the couple intending to use the procedure of surrogacy for having a child should be infertile. Infertile as defined in the bill is “inability to conceive after five years of unprotected coitus”. Now, this definition does not cover all cases in which a couple cannot conceive the child. For instance, women may be able to conceive a child but her physical or medical conditions are not such that she can bear the child for 9 months in her womb.
The bill specifies that a surrogate mother needs to be the ‘close relative’. But a close relative is not defined anywhere in the bill. Also, this clause excludes the couples who are not having any close relatives or any relatives. Moreover in the country like India, until this 21st century, the inter-caste couples are often abandoned from the society, so they are not left with an option to have a child through the procedure of Surrogacy.
Moreover, not defining the words like ‘Close Relative’ or improper definition of ‘infertility’ in the Parent Act and leaving it on the shoulders of Delegated Legislation is an inappropriate exercise of Parliamentary Powers.
Lastly, under this bill for the abortion, the surrogate mother has got no rights the state authority would decide upon the abortion of the child. And also the intended couple has got no rights about the abortion. This moralistic notion of the state makes it patriarch who decides how children should be born and raised into society and clearly lacks the foresight for the dynamic future.