The Union Cabinet, on Wednesday, cleared the Surrogacy (Regulation) Bill, 2016, banning commercial surrogacy in India.

The Bill also bars foreigners, homosexual couples, people in live-in relationships and single individuals, making only childless, straight Indian couple married for a minimum of five years eligible for surrogacy.

Eligible couples will have to turn to close relatives, not necessarily related by blood for altruistic surrogacy — where no money exchanges hands between the commissioning couple and the surrogate mother.

Minister for External Affairs Sushma Swaraj defended making homosexuals ineligible for surrogacy.

‘Aligned with our values’

Ms. Swaraj said: “Each country has to make laws that are aligned with our values, as per a legal framework. Homosexual couples are not recognised by law in India.”

The Bill also prohibits couples who already have biological or adopted children from commissioning babies through surrogacy.

The surrogacy debate started in India in 2008, when two-week-old Baby Manji Yamada was left stateless after the commissioning parents in Japan divorced during the pregnancy and the commissioning mother refused to accept the baby. While the court granted custody to the baby’s grandmother after a long legal battle, the case led the Gujarat HC to state that there is “extreme urgency to push through legislation” which addresses such issues. Subsequently, the 228th report of the Law Commission of India recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.

The Bill approved on Wednesday will apply to the whole of India, except Jammu and Kashmir. Before being passed by the Cabinet, a Group of Ministers (GoM) had recently cleared the Bill.

Taking a jibe at celebrities like Shah Rukh Khan and Aamir Khan, who had children by way of surrogacy, Ms Swaraj said that, “rich people outsource pregnancies to poorer women because their wives cannot go through labour pain. We have put a complete stop to celebrities who are commissioning surrogate children like a hobby, despite having biological ones.”

Further, the new Bill mandates that women acting as surrogates can do so only once. And all Assisted Reproductive Technology (ART) clinics will be registered.

“We have given 10 months during which pregnancies under way now can be seen through and the babies delivered to the commissioning parents. After that all clinics will have to adhere to these new laws once Parliament passes the Bill in the next session,” said J.P. Nadda, Health Minister.

In 2002, India became the first country to legalise commercial surrogacy. By 2012, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually by a paper written by advocate Amil Malhotra titled, ‘All aboard for the fertility express.’

Expert view

Gynaecologists and infertility specialists also took offence to surrogacy being equated with indulgence as they said it is most often the last resort for people wanting a child. The draft Bill bans renting a womb for money and allows it only if the woman is doing so for altruistic reasons, which surrogacy experts dubbed illogical and unreasonable.

“Surrogacy cannot be seen as illegal and immoral. The draft Bill is both draconian and unreasonable. It is a violation of the reproductive right of the surrogate mother,” said Hari G Ramasubramanian, surrogacy law expert and founder of Indian Surrogacy Law Centre and Gift Life Egg bank, Chennai. He questioned: “How many people actually have someone who will be willing to be a surrogate.”

Mr. Ramasubramanian said the draft Bill even banned egg donation that would only ensure that a sizeable number of people seeking IVF treatment would not be able to take it up now.

Key aspects of the Bill

1. The draft surrogacy Bill aims at regulating commissioning of surrogacy in the country in a proper manner.

2. As per the 2009 Law Commission Report, the assisted reproduction treatment industry is Rs. 25,000 crore industry.

3. The Bill aims to prevent exploitation of women, especially those in rural and tribal areas.

4. The Bill promises to ensure parentage of children born out of surrogacy is “legal and transparent.”

5. The new Bill proposes complete ban on commercial surrogacy.

6. As per the Bill, only legally-wedded Indian couples can have children through surrogacy, provided at least one of them have been proven to have fertility-related issues.

7. Foreigners, even Overseas Indians, are barred from commissioning surrogacy.

8. A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses.

9. Unmarried couples, single parents, live-in partners and homosexuals cannot opt for surrogacy as per the new bill.

10. Surrogacy regulation board will be set-up at Central and State-level.