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The Lower House passed the Surrogacy (Regulation Bill) amid protests from the opposition on Rafale deal. The 228th report of the Law Commission sought to ban commercial surrogacy by enacting suitable legislation. The prime object of the Bill is to prevent misuse by the surrogacy clinics which focus on monetary benefits and unethical practices.
Clause 2(f) defines ‘Commercial Surrogacy’ as commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage of the surrogate mother.
The bill makes commercial surrogacy an offence punishable with a minimum term of 10-year imprisonment and with fine. Clause 35 completely prohibits the commercial surrogacy and rendering related services, exploitation of surrogate mothers, trade of human embryos, advertising commercial surrogacy, running unregistered surrogacy clinics.
Only altruistic surrogacy is permissible as per the provisions of the bill. Altruistic surrogacy implies the absence of monetary consideration and genetic relation of a person giving surrogacy service with either of the intending parents.
As per Clause 2(b), “Altruistic Surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative.
A surrogate mother is the one who is genetically related to the intending couple,and the surrogacy services are meant only for the legally married Indian couplewho have marriedatleast for 5 years. Clause 2(g) of the bill defines ‘couple’ as ‘legally married Indian man and woman above the age of 21 years and 18 years respectively. This implies that no foreigner, couples of same-sex and persons in live-in shall be permitted to avail the surrogacy services.
Clause 2(p) of the bill defines infertility as an inability to conceive after five years of unprotected sex or other proven medical condition preventing a couple from conception. For a valid surrogacy, the age limit of a couple must be between 23-50 years for a female and 26-55 years for a male. Also, the couple should not have availed surrogacy services earlier, adopted any child, gave birth to a child biologically. Nonetheless, if the surviving child happens to be physically or mentally disabled, or has life-threatening diseases, the couple shall be entitled to avail surrogacy services.
It is essential to obtain the consent of the woman, who intends to become a surrogate mother, in a written format, and she cannot opt for surrogacy more than once. Once the surrogacy occurs, the couple is restrained from abandoning the child as the child through surrogacy shall be construed as legal offspring of the intending couple.
The Bill proposes to constitute a separate Surrogacy Board to guide the government in the formulation of related policies and review their implementation from time to time. The Board is to be constituted at the National, State and Union Territory level. The Bill seeks to prohibit the practice of abortion; and mandates that surrogacy service can be provided by those clinics which are registered as provided in the Bill. Registration shall be granted only after being satisfied that such clinics have the necessary infrastructure with adequate manpower, and diagnostic facilities as may be prescribed in the rules and regulations.
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