Article Of The Week

Govt’s Impractical Surrogacy Law Is an Ordeal for Both Couples & Singles

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The Government of India proposed and both houses of Parliament passed the Surrogacy (Regulation) Bill, 2021, which was duly given its assent by the President of India, Ram Nath Kovind. The hugely flawed Bill raises more questions and causes more alarm and disquiet than it hopes to solve.

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The major clauses of the law lack common sense and are set in an ideal world, which does not exist. This law makes it enormously difficult – or even impossible – for genuinely distressed singles, divorced, unmarried and married couples to have children, in one single stroke.

The Bill prohibits commercial surrogacy but allows altruistic surrogacy. Altruistic surrogacy is a philanthropic act done by a woman, which involves no monetary compensation to her as a surrogate mother other than the medical expenses and insurance coverage during the pregnancy. In today’s day and age of hyperinflation and cost of living, the lawmakers imagine that a woman will step forward out of her social service needs to become a surrogate without any monetary (or kind) fulfilments. The government does not propose where distressed people can find such prospective surrogate mothers, leaving a huge doubt to the process forward.

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Close to the heels of this impractical clause comes the next one: the surrogate has to be a close relative of the intending couple. The whole concept of surrogacy depends on the anonymity of the helping woman who disappears in oblivion after the surrogacy with no contact. The danger of this new law is that it makes a close relative a party of surrogacy with continuous contact with the newborn, raising new concerns about the surrogate mother’s relationship with the newborn child. This may negate the emotional relationship the new parents may want to develop, an impediment if the surrogate mother is hovering around. When the child grows up, the traceability of the surrogate mother will lead to emotional attachment to the surrogate (and vice versa) and create emotional challenges for the parents. Further, after passing through these challenges, the couple must find a surrogate close relative between the age of 25 and 35 years.

Another disturbing clause is of the couple being married for at least five years. Couples who have discovered their infertility in the first year or second year of marriage will have to go through the trauma of waiting to complete five years of marriage to be eligible for surrogacy. This is impractical and needs to be done away with.

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The law does not answer the future of single men and women who desperately seek children due to growing age and the need for companionship through children. If a single man or woman has been divorced after a marriage of a few years, and get married again, they will have to painstakingly wait for another five years to be eligible for surrogacy. The law forces individuals to get married, wait for five years then find an altruistic close relative between 25 to 35 years old to fulfil their dream of having children. The law ends up as a punishment for genuine couples who seek to end the childless trauma and the cycle of pain and grief. A few bad apples have set the entire apple cart awry.

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The government needs to urgently set up help centres for distressed couples to help them find altruistic, selfless women to help ease the process of surrogacy. Government can introduce such clauses for couples residing abroad, NRIs and foreigners, but domestic couples must be excluded. Leading hospitals must petition the government to make amendments in the law, which is self-defeating and may cause trauma to genuine couples who seek children to complete their lives. The Supreme Court and civil society must take up this case strongly and urgently request the government to amend the clauses. If the laws continue in the present form, it may be the death knell of surrogacy in India.