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Is the new law a death knell for the surrogacy industry in India?

Date: 5th February, 2022

Publication: Times of India

Ratna and Vijay (names changed) were married in 2017 and despite a blissful marriage of 2 years, they were unsuccessful in getting pregnant. Upon tests, doctors discovered a uterus complication that would not allow Ratna to become a mother. Amongst the options available, the distressed couple chose to give birth to a child through the gift of surrogacy. Today, Ratna and Vijay are delighted parents of twin sons and are thankful to their invisible surrogate for the blessing of a lifetime. Surrogacy gave hope to childless couples to still have children with their blood and DNA through advanced technology. Lesser interference from the government, bureaucracy and local administration since 2002 has led the surrogacy market to boom.

Pegged at anywhere from Rs 400 crore to Rs 15000 crore market in India, surrogacy as an industry has boomed in India in the past twenty years. Surrogacy was legalized in 2002 and since then India has become the ‘Surrogacy Capital’ of the world inviting innumerable childless couples and singles who have availed the opportunity to extend their family through a surrogate. Non-Resident Indians (NRIs) and Non-Indians made a beeline to the many clinics spread across the country to have children through surrogacy. Even celebrities in India such as Karan Johar, Shah Rukh Khan, Tusshar Kapoor, Priyanka Chopra, Preity Zinta, Shilpa Shetty, Ekta Kapoor amongst many others have taken the surrogacy route to add bundles of joy to their lives. Surrogacy has been a boon for singles and divorcees who could continue to lead a life of hope with a joyous addition to their lonely life.

Noting multiple irregularities, exploitation and malpractices the Government banned commercial surrogacy with a promise to further regulate the booming industry that gives hope to millions of childless couples. Despite facing hurdles of caution in the Parliament, the Government passed and notified the Surrogacy (Regulation) Bill 2021 effectively greying the future of surrogacy in India. In a country as large as India, anomalies are bound to exist but the new law gives importance to the exceptions rather than the majority of genuine cases that ignited a lifetime of happiness for childless couples like Ratna and Vijay.

The surrogates who earn anywhere from Rs 3-4 lakh rupees are generally from low income to poor backgrounds and opt for surrogacy to tide over a life of hyperinflation, dwindling incomes, and abject poverty. This bill effectively puts needy surrogates who have chosen to carry a child for others of their free will with the support of their husband and family into a dark irreversible pit. The tragedy of the bill coinciding with the rise of poverty in India resultant from the horrid pandemic cannot be more unfortunate.

The ruinous clauses of the new bill entail surrogacy as an altruistic act of kindness without cash or kind favor. Distressed childless couples must find a close relative of a certain age group to request her to loan her womb to fulfill their desire for a child. Impractical as it may sound, the bill stops short of directing childless couples on where to find such godly relatives within their families in the modern age. This is as excruciating as finding a matching kidney or a liver donor within the family where none want to come forward.

The whole premise of surrogacy stands on the legal and emotional disappearance of the surrogate after the act of giving birth to the child. The new bill warrants the close relative cum surrogate to keep hovering around the child post-birth raising serious questions on the future passionate claims of this close relative on the child. The child once grown-up may value the close relative more than the parents once the truth of his/her origin is known, thereby threatening the relations of the parents and the child. The element of anonymity of the surrogate in the old law is replaced with a possible supervisory close relative.

The new law does not provide any relief for individuals, prospective single parents, LGBTQ, and divorcee singles who are left in a lonely lurch to either forcefully get married and then try for children or simply apply for a two-year adoption period.

Regardless of its merits, the Surrogacy (Regulation) Bill 2021 snatches away the priceless completeness of every Ratna and Vijay through immense struggles of childlessness via surrogacy