Any willing woman can be surrogate mother, not restricted to ‘close relatives’

The Rajya Sabha Select Committee held 10 meetings since the Surrogacy Bill was referred to it by the Rajya Sabha on November 21, 2019

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Noting that restricting the surrogate mother to be a 'close relative' potentially restricts the availability of surrogate mothers affecting the genuinely needy persons, the Committee has recommended removal of this requirement from the Bill.

Surrogate mothers should not be restricted to ‘close relatives’ only and instead, any willing woman should be allowed to be so, recommended the Rajya Sabha Select Committee on Surrogacy (Regulation) Bill, 2019.

Bhupender Yadav, Chairman of the 23-Member Committee, tabled the report in Rajya Sabha on February 5, Wednesday and the bill was referred to the Committee on the basis of demands from the opposition parties last November.

Other major changes recommended by the Committee include; allowing single woman – a widow or a divorcee and Persons of Indian Origin (PIOs) to avail surrogacy;  removing the provision of requirement of five years as the period of inability to conceive before opting for surrogacy; and increasing the insurance cover for the surrogate mother from 16 months proposed in the Bill to 36 months.

Noting that restricting the surrogate mother to be a ‘close relative’ potentially restricts the availability of surrogate mothers affecting the genuinely needy persons, the Committee has recommended removal of this requirement from the Bill. The Committee recommended that “A willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act.”

Also Read: Surrogacy Bill: Protecting women’s rights or denying choice?

Regarding the eligibility criteria for availing surrogacy procedure, the Committee recommended deletion of the definition of ‘Infertility’ as the inability to conceive after five years of unprotected sexual intercourse as provided for in the Bill on the ground that it was too long a period for a couple to wait for a child.

The Committee noted that there may be certain proven medical conditions like the absence of uterus by birth, non-functional uterus,  removal of the uterus due to cancer, fibroids etc. or patients with a chronic medical condition where normal pregnancy is ruled out and it is medically proven beyond any doubt that surrogacy is the only option.

The Committee also further noted that the requirement of obtaining certificate of proven infertility is not at all justified in such cases. With the proposed deletion of the definition of ‘Infertility’, needy persons can seek to avail surrogacy any time on the basis of a certificate of medical indication requiring gestational surrogacy

In yet another recommendation of far-reaching implications, the Select Committee of Rajya Sabha advocated that ‘single Indian woman’ i.e. a divorcee or a widow in the age group of 35 to 45 years may be allowed to avail surrogacy.

The Committee noted that “There are conditions under which a single person genuinely needs to avail surrogacy option to have child. One such situation is a young aged widow, who is otherwise capable but cannot carry a child because of fear of the social stigma attached to the pregnancy of a widow in our society.”

The Committee also proposed that a provision be included in the Bill allowing Persons of Indian Origin (PIOs) to avail surrogacy in the country after obtaining a certificate of recommendation from the Surrogacy Boards.

Noting that the procedure of surrogacy poses the risks of medical complications and health hazards, post-partum (after delivery) and to secure surrogate mother financially and health-wise, the Committee recommended that the insurance coverage of 16 months provisioned in the Bill should be increased to 36 months which provides the surrogate mother a psychological satisfaction.

The Committee also recommended modification in the definition of altruistic surrogacy so as to cover ‘such other prescribed expenses’ on nutritional food required, maternity-wear etc. vital for the wellbeing and upkeep of the surrogate mother. In order to protect the interest of the child born through surrogacy, the Committee recommended that the order regarding parentage and custody of the child to be issued by a Magistrate shall be the birth affidavit of the surrogate child.

As a general recommendation, the Select Committee recommended that the Assisted Reproductive Technologies (Regulation) Bill which is awaiting cabinet approval may be taken up before the Surrogacy (Regulation) Bill since the ART Bill primarily deals with technical, scientific and medical aspects which also apply to storage of embryo, gamete, oocyte etc. as contained in the Surrogacy Bill.

Also Read: RS members seek changes in surrogacy bill over age, eligibility, marriage norms

The Committee in an important recommendation required the Appropriate Authorities of the Central and State Governments to submit data on the number of surrogacy procedures, surrogacy clinics and all related aspects to the National Board on Surrogacy so as to develop a proper database which helps in monitoring and regulation of surrogacy in the country.

Other recommendations of the Committee relate to enhancing the term of experts on the surrogacy boards from one year as proposed in the Bill to three years and officials of sufficiently higher rank to be the Chairman and Vice Chairman of Appropriate Authorities as they deal with vital issues concerning surrogacy.

The Select Committee while strongly backing the provision of the Bill allowing only altruistic surrogacy and not commercial surrogacy opined that “the sublime and divine instinct of motherhood could not be allowed to be turned into mechanical paid service of pro-creation devoid of divine warmth and affection.”

The Committee held 10 meetings since the Surrogacy Bill was referred to it by the Rajya Sabha on November 21, 2019.

The panel held detailed deliberations with senior officers of the Department of Health Research and various stakeholders/experts including surrogate mothers and intending parents.

The Committee visited the surrogacy clinics at Anand (Gujarat), Hyderabad, and Mumbai and interacted with doctors, intending couples, surrogate mothers to understand important issues related to surrogacy.

Dr Nayana Patel, medical director, Akanksha Hospital and Research Centre, Anand in Gujarat, a centre for surrogacy, says that the clause of close relative is the biggest bone of contention in the proposed bill and should be reconsidered.

“It is never going to be possible to find a relative willing to be a surrogate within the family. It will only result in animosity and an atmosphere of friction within families,” she added.

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