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Only married couples can now opt for surrogacy

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.

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.

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

External Affairs Minister Sushma Swaraj said foreigners, NRIs and PIOs who hold Overseas Citizens of India cards have been barred from opting for surrogacy as “divorces are very common in foreign countries.”

According to the new Bill, a 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 carry somebody else’s child.

Without taking any names, Swaraj said it was “unfortunate” that couples, who have a boy and a girl 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.”

Swaraj headed the GoM that finalised the Bill in its current form, which deals solely with surrogacy, instead of the one that the department of health research has been working on for years now that sought to regulate all aspects of assisted reproductive practices. There are enough regulations on IVF, Swaraj said.

Swaraj’s summary 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.

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. If a couple does not have any close relatives, they should just opt for adoption, she said.

“The reason we have not allowed a couple with a biological or adoptive 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, certainly when the question of property arises,” Swaraj said.
The bill has provision for a jail term up to 10 years and a fine of Rs 10 lakh for violations, such as abandoning the child and opting for commercial surrogacy.