Regulating the Surrogacy Industry – A Feminist Perspective

Sarojini Nadimpally, Deepa Venktachalam and Sneha Banerjee| Kafila| 28 August 2016

The press briefing on commercial surrogacy by Minister of External Affairs Ms  Sushma Swaraj, on 24th August 2016,  did not come as a surprise to many of us who have been advocating for the rights of surrogate mothers and the regulation of the Assisted Reproductive Technology (ART) industry. Many of the points mentioned in her speech were already in the Draft Assisted Reproductive Technologies (Regulation) Bill 2014. Since 2015, the Ministry of Home Affairs (MHA) had stopped issuing visas to foreigners for commissioning a surrogacy. The Supreme Court of India is currently hearing arguments in a Public Interest Litigation (PIL) demanding a prohibition or ban on commercial surrogacy.  In a recent hearing, the Supreme Court asked the government to develop the framework for the regulation of the  ART and surrogacy industry in India.

The latest regulatory move extends prohibitions in place in the draft ART Bill of 2014, banning commercial surrogacy altogether, and permitting only altruistic surrogacy (without payment), and only for one category of people – heterosexual Indian couples who have been married for five years and do not have any children, specifically excluding NRIs. Only close relatives can be surrogates and there are penalties that are absent in the Draft ART Bill of 2014. The draft ART Regulation Bills (2010, 2014) mentioned marriage as a mandatory clause, with ‘couple’ who could access surrogacy arrangements, defined as a man and woman living in a marital relationship for two years; the current Surrogacy Bill says 5 years.

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