Surrogacy Regulation Drawbacks

The development has taken place in various fields in this century. One of them is in the field of medicine. Over recent years surrogacy has become the best and most viable option for couples and persons who wish to be single parents. The word 'surrogate' comes from the Latin word "surrogatus" which means"substitute," i.e., where a person is to be appointed in some other place. Surrogacies are of two types, and they are Traditional surrogacy and Gestational surrogacy. The Concept of Surrogacy is said to be considered as anew aspect for India, but this is a very ancient concept, and it is mention in the mythology too. There have been ethical and legal implications for the acceptance of surrogacy worldwide as surrogacy is not practised by all the countries. According to the surrogacy bill passed in 2016, specific laws were amended so that the women are prevented from exploitation, but there were certain drawbacks as well. Some of the Drawbacks included that it restricted the right to have children as the single parents, homosexual, live-in relationship couples are not allowed to have a baby through surrogacy which ina way violated Article 14 of the Indian Constitution and also restricted right to livelihood for all person. They have the right live the life with full dignity. The clause says that it would make difficult, especially for heterosexual couples to become a surrogate mother whose blood relative age lies between 25-35 years. Until today, India has always been the surrogacy capital for foreigners from other countries. Then the Surrogacy Bill 2019 was introduced that forbids commercial surrogacy and allows altruistic surrogacy.Altruistic surrogacy does not include any monetary compensation or reward to the surrogate mother other than insurance, and medical outlays during the process of pregnancy medical expenses and insurance coverage during pregnancy.

The Surrogacy (Regulation) Bill, 2016:

The Central Government proposed the Bill on 21st November 2016 in Lok Sabha, and it was passed on 19th December 2018. It was drafted by Lt. Sushma Swaraj along with a group of ministers proposed the Bill intending to allow only married Indian couples to try for surrogacy of altruistic kind. The Bill targeted on prevention of commercial surrogacy and promotion of altruistic surrogacy.

Provisions:

Ø  The Bill applied to all the states of India except Jammu and Kashmir. 

Ø  The Bill provided the right of surrogacy to only Indians and abolished it for the NRI, PIOs and Foreigners.

Ø  It protects the physical and emotional conditions of the surrogate, and she cannot go under repeated surrogacy.

Ø  The child will also in a way be safe if the intended parents leave the child under any circumstances so the surrogate mother can take care of the child as she is the close relative of the intended parents.

Ø  The woman who is willing to this kind of mother they should be married and have a child of their own.

Ø  They can regulate proper clinics and hospitals to allow surrogacy. 

Ø  It is also providing legal aid.

Drawbacks of the Bill:

The majority portion of the Bill was in a positive direction still there were many loopholes Drawbacks included that it restricted the right to have children as the single parents, homosexual, live-in relationship couples are not allowed to have a baby through surrogacy which in a way violation of Article 14 which has restrictions on the right to livelihood for each person has the right to live the life with full dignity. The clause says that it would make difficult,especially for heterosexual couples to become a surrogate mother whose blood relative age lies between 25-35 years. The provision of allowing a close relative to become surrogate was disturbing the personal space. Article 21 of the Indian constitution was getting violated as it denied deserving people of parenthood.

Surrogacy(Regulation) Bill, 2019

The Surrogacy (Regulation) Bill, 2019 was introduced by The Ministry of Health and Family Welfare on 15th July 2019 in the Lok Sabha. The Bill permitted surrogacy if it is fulfilling the eligibility criteria that is if it was for intending couples who suffer from verified infertility, altruistic surrogacy, and not for monetary benefits, not for producing children for auction. When the Act was enacted it extended to the whole part of India except Jammu and Kashmir, and it was introduced to conduct the practice of surrogacy especially for the mothers who exploited in this 'rent a womb' business.

The drawback of the Surrogacy (Regulation) Bill, 2019:

The Bill has loopholes with regard to the age limit permissible for the intending couple and surrogate mother also on the ban of the commercial surrogacy. The Bill did not discuss NRIs who are abroad, who intended to have a child after coming back to the home country. The unmarried couples and the LGBT community who want to have a child through surrogacy were not included. Only heterosexual couples are allowed to undergo surrogacy who have completed five years of marriage and also have been in contradiction with the Fundamental Rights.

The Surrogacy (Regulation) Bill 2020 

The Surrogacy (Regulation) Bill 2020 has been approved by the Union Cabinet which was presided over by Prime Minister Narendra Modi. Serious action was demanded to be taken in the field of surrogacy by the Indian Citizens; as a result, the amended Bill was introduced as a reformed version of "The Surrogacy Regulation Bill, 2019. The Surrogacy Bill 2020 allows any willing women to become a surrogate mother and also proposes that widow or divorced women can also willingly become a surrogate mother and take benefits from this provision besides the infertile couples

Conclusion:

In the absence of any legislation, it is difficult for the courts to decide the legality of the Surrogacy contract, rights of the surrogate, child and commissioning parents. Courts started determining to take into consideration the best interest of the child. It still requires a lot of acknowledgement and acceptance by the public. There is a lot of occurrence wherein surrogacy has been positively viewed at and simultaneously a few instances wherein it is taken negatively. But ignoring all the pessimism, surrogacy has undoubtedly helped a lot of mothers, a lot of fathers and a lot of parents to enjoy the right of parenthood.

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