The draft of surrogacy bill 2016, cleared by the cabinet on Wednesday, has been criticised by infertility doctors and advocacy groups who expressed doubts about its rationale and its effective implementation.
According to the draft bill, only Indians who have been married for more than five years and who can prove their infertility can opt for surrogacy. Single individuals, homosexual couples and live-in partners do not have the option said Union Minister for External Affairs Sushma Swaraj. "Each country has to make laws aligned to its values as per its legal frame-work," the minister was quoted in news reports.
The most significant change is that it has banned commercial surrogacy in the country. Only altruistic surrogacy by close relatives, where no money is exchanged is allowed. The bill also says that those with children, adopted or biological, will not be eligible for surrogacy.
There are questions whether a blanket ban on commercial surrogacy is the right way to prevent the exploitation of surrogates. "Concerns remain over implementation and operationalisation of a blanket ban on commercial surrogacy in the present scenario," says Sneha Banerjee of SAMA, which works on women's health. "It is unclear as to how it will protect and safeguard the rights of the most vulnerable in the surrogacy, that is the surrogates."
Doctors are vocalising their opposition to the bill, calling the effort to ban commercial surrogacy as the worst response to efforts to regulate surrogacy. Dr Himanshu Bavishi, President of Indian Society of Third Party Assisted Reproduction says, "It is a regressive step that proves the inefficiency of the government in regulating surrogacy in India."
He feels that it will stop the practice of surrogacy in the country. "Where will couples find a close relatives willing to carry and deliver a baby for them? Many don't have the time to do it for themselves," he points out.
There are fears that the bill may just push commercial surrogacy underground where it may lead to more exploitation. It may also lead to exploitation of a family member in some cases.
Dr Duru Shah, president elect of the Indian Society of Assisted Reproduction, says, "While it is a good move, the only outcome we will need to look at will be on how many women will agree to bear someone's child for nine months for altruistic reasons without any advantage? Could there be the possibility of coercion of daughters-in-law in families?"
While this means the end of surrogacy as a medical tourism opportunity for India, it will also close the way for many underprivileged women to pull their families out of poverty. "There are many surrogates who have used the money to fund education of their families, build homes and use the money for constructive purposes," says Dr Archana Dhawan Bajaj, Gynecologist& Obstetrician, Nurture IVF Centre, Delhi.
She says some stray cases of exploitation should not be used to label the whole compensatory surrogacy as unscrupulous. "Also, how can government decide that singles, gay couples should not be given a chance to have their babies through surrogacy. We are not moving with times," she added.
Referring to Swaraj's statement about celebrities who outsource pregnancies to other women to avoid labour pain or as an indulgence, Bavishi says, government cannot use surrogacy bill as a way to get back at celebrities they are annoyed with. "In the end, neither doctors nor surrogates are the losers. It is the infertile couple who lose out on a chance to have their biological baby."