New surrogacy Bill bars married couples with kids, NRIs, gays, live-ins, foreigners

The government on Wednesday approved a bill that bans commercial surrogacy, and bars single people, married couples who have biological/ adopted children, live-in partners and homosexuals from opting for surrogacy.

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THE GOVERNMENT on Wednesday approved a Bill that bans commercial surrogacy, and bars married couples who have biological or adopted children, single people, live-in partners and homosexuals from opting for surrogacy.

The Surrogacy (Regulation) Bill, 2016, cleared by the Cabinet, only allows “altruistic surrogacy” for childless couples who have been married for at least five years. Then too, the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own.

Briefing the press after the Cabinet meeting, External Affairs Minister Sushma Swaraj said foreigners, NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy as “divorces are very common in foreign countries”.

Swaraj headed the Group of Ministers (GoM) who finalised the Bill in its current form, dealing solely with surrogacy — in contrast to another Bill, which the department of health research has been working on for years now, seeking to regulate all aspects of assisted reproductive practices. There are enough regulations on IVF, Swaraj said.

New surrogacy Bill bars single parents, homosexuals, live-in couples, foreigners married woman who has at least one child of her own can be a surrogate mother only once in her lifetime. Childless or unmarried women are not allowed to be surrogate mothers.

Without taking any names, Swaraj said it was “unfortunate” that couples, who already have a son and a daughter of their own, opt for surrogacy “just because it is fashionable”.

Replying to a question, she said: “We do not recognise homosexual or live-in relationships, that is why they are not allowed to commission babies through surrogacy. It is against our ethos.”

The Bill, which borrows heavily from UK’s altruistic surrogacy Bill, has changed the British provision of allowing only blood relatives to “close relatives”, a term that will be further elaborated in the rules.

“In commercial surrogacy, one would just pay the surrogate mother and ensure that the mother and baby never come in touch. But in this case it is an open thing, there are no ethical issues. The child would know who the biological mother is because it is a close relative,” said Swaraj. In the absence of close relatives, the couple should opt for adoption, she said.

“The reason we have not allowed a couple with a biological or adopted child to commission another baby through surrogacy is because there is bound to be discrimination, if not at the time of bringing up the child, then certainly when the question of property arises,” Swaraj said.

The Bill requires all surrogacy clinics to be registered. Clinics can charge for the services rendered in the course of surrogacy, but the surrogate mother cannot be paid. National and state surrogacy boards will be the regulating authorities.

Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh. Clinics have to maintain records of surrogacy for 25 years. The rights of the surrogate child will be the same as that of a biological child.

Meanwhile, Swaraj’s dismissal of homosexuality, though in line with the Supreme Court’s order upholding Section 377 criminalising gay sex, is at odds with the opinion of her cabinet colleague Arun Jaitley. “When you have millions of people involved in this (gay sex), you can’t nudge them off… Jurisprudence world over is evolving, I think the judgment was not correct and, probably at some stage, they may have to reconsider,” Jaitley had said earlier.

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