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Cabinet clears draft surrogacy bill: here's what it contains

The bill seeks to regulate commissioning surrogacy and safeguard the rights of surrogate mothers.

Written by : Monalisa Das

The Union Cabinet on Wednesday cleared the draft Surrogacy (Regulation) Bill, 2016, which seeks to regulate commissioning surrogacy and safeguard the rights of surrogate mothers. 

The bill aims to "control unethical practices, prevent commercialization and prohibit exploitation of surrogate mothers and children," the health ministry said. 

The draft had earlier been cleared by the Group of Ministers (GoM) after consideration.

According to the bill, those eligible for surrogacy will have to be "Indian, married and infertile". The bill will thus exclude single people, foreigners, homosexual couples and those in live-in relationships from commissioning surrogacy in the country. The bill also proposes "extra protection" for the surrogate mother through mandatory "insurance cover".

"Unmarried couples, single parents, live-in partners and homosexuals cannot opt for surrogacy as per the bill. Legally wedded couples who have been married for at least five years, can opt for surogacy," External Affairs Minister Sushma Swaraj said. 

Only "close relatives" of couples seeking children will be allowed to be surrogate mothers. A woman who offers her womb for the purpose, will be able to do so only once as per the bill.

The woman wanting a child through the method will be the mother as per the proposed law. There is a provision under the measure for a contract to clear any ambiguity.

Only altruistic surrogacy will be allowed in a regulated form with some condition, the bill said.

A woman seeking a surrogate child should between 23 and 50 years in age and her husband should be between 26 and 55 years.

A surrogate child will have equal right as any other biological or adopted child over property, Swaraj said.

Moreover, the surrogate mother, who should be a close relative of the couple, should be married and have borne a healthy child.

The bill also aims to set up a board to accredit, regulate and supervise assisted reproductive technology clinics and banks in order to prevent misuse and to promote safe and ethical practices. 

The surrogacy will apply to the whole of India, except for Jammu and Kashmir, the health ministry said. Ethical surrogacy will be available to infertile couples on the fulfilment of certain conditions. Commercial surrogacy, including sale and purchase of human embryo and gametes, will be prohibited. 

While a National Surrogacy Board will be set up at the centre level, there will also be boards set up at the state levels. The ministry has asked the appropriate authorities to start implementing the Act within 6 months from date of commencement.

The bill has a provision for a jail term upto ten year and a fine of Rs 10 lakhs for violations, such as abandoning the child and opting for commercial surrogacy.

The government had recently admitted that in the absence of a statutory mechanism to control commissioning of surrogacy at present, there have been cases of pregnancies by way of surrogacy, including in rural and tribal areas, leading to possible exploitation of women by unscrupulous elements.

The bill was to be taken up by the Union Cabinet on April 27, but it was dropped from the agenda at the last moment.

To prevent exploitation of women, especially those in rural and tribal areas, the government has prohibited foreigners from commissioning surrogacy in the country and has drafted this comprehensive legislation, sources said.

The government had recently said in Parliament that provisions are being made in the draft Bill to make parentage of children born out of surrogacy "legal and transparent".

Gita Aravamudan in a piece for The News Minute had written that commercial surrogacy in India is a multi-million dollar business, and needed to be strictly regulated.

"According to a UN backed study done in 2012, the estimated business is more than $400 million a year, with over 3,000 fertility clinics across India.  These figures would most probably have gone up by now.  Actually, no one has a proper estimate of the number of fertility clinics or how much business they do because no systematic effort has been made to collect proper data.  Over the last decade and a half, this “Make in India” business has merrily mushroomed without regulation."

Surrogacy is a method of assisted reproduction.

"In India surrogacy heralded with the delivery of its first surrogate baby on June 23rd, 1994, but it took eight more years to draw world attention to it when an Indian woman in 2004 delivered a surrogate child for her daughter in the U.K.," M.L.Dhar wrote in a piece for the PIB.

The Assisted Reproductive Technology bill (ART) was drafted in 2007 by the then Congress government and following discussions till 2015, the bill was narrowed down to deal with  issues related to “surrogacy” only, The Asian Age reported. 

With agency inputs

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