The controversy surrounding a commercial surrogacy law could be ameliorated, at least in part. A parliamentary panel has recommended a number of critical alterations to the legislation – including loosening the restrictions on who can be a surrogate mother.
The Surrogacy (Regulation) Bill was introduced last year, in a bid to clamp down on commercial surrogacy and put an end to so-called fertility tourism – referring to the perception that the country was a “haven” for couples from abroad to come and “rent a womb.” Union Health Minister Dr Harsh Vardhan said “there are 2,000-3000 surrogacy clinics running illegally in India…a few thousand foreign couples resort to surrogacy practice within India, and the whole issue is thoroughly unregulated. There have been reports concerning unethical practices, abandonment of children born out of surrogacy and exploitation of surrogate mothers.” The Bill was expected to reduce surrogacy births by 99.9 percent.
The provisions of the legislation included a number of stringent regulations, with narrow definitions of who was eligible for commercial surrogacy and who could put themselves forward as a surrogate mother.
Couples consisting of a woman aged between 23 and fifty and a man aged between 26 and 55 would be eligible for surrogacy under the bill, but would have to have been legally married for five years without children and with a doctor’s certificate affirming that they cannot conceive. The surrogate, meanwhile, would be required to have at least once been married, with a child of their own, and to be a close relative of the couple petitioning for surrogacy aged between 25 and 35.
The legislation sparked immediate backlash over concerns that it was too restrictive and exclusive. Those in same-sex and/or cohabiting relationships or who are not in a relationship at all would have no recourse to be able to apply for surrogacy. Those who do not reside in India, even if they are of Indian origin or descent, were also banned in a bid to prohibit so-called ‘fertility tourism’, which the Confederation of Indian Industry valued at US$2 billion in 2012.
However, a select committee in the Indian Parliament has said that the restrictions on who can be a surrogate should be amended and that any “willing woman” can volunteer, even if they are not a “close relative” of the couple in question. While the panel did agree with the Centre’s efforts to clamp down on commercial surrogacy and fertility tourism, their recommendations did suggest that some of the limitations were excessive.
As well as amending the criteria for being a surrogate, they suggested removing the five-year window, allowing women who are single to apply for surrogacy (divorcees or widows, aged 35-45), and allowing applicants of Indian origin. In addition, the panel said that the surrogate mother could be compensated for the procedure for more than just medical expenses (i.e. for her nutritional needs or for items such as maternity clothing).
The news may come as a relief for some couples whose hopes of availing surrogacy were diminished by the legislation. Commenting last year, Dr Naryana Patel – medical director of Anand, Gujarat’s Akanksha Hospital and Research Institute – said “commercial surrogacy should be renamed ‘compensated surrogacy’. It should be regulated and be made available to genuinely indicated couples, for whom it’s the only method to have a biological child of their own, rather than putting a blanket ban for everyone.”
