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The new subrogation bill protects everyone’s interests: analysis


Research conducted by the World Health Organization (WHO) estimated that in 2010, 48.5 million couples worldwide could not have a child of their own. They suffered from infertility, which, according to the WHO, is a disease of the reproductive system defined by the impossibility of achieving a clinical pregnancy after 12 months or more of regular unprotected sex. Given the advances in medical science, couples have been trying different medical solutions to have children.

Over the years, India has become the center of the global fertility industry, with reproductive medical tourism becoming an important activity. Clinics in India have been offering assisted reproduction technology (ART) services such as gamete donation, intrauterine insemination (IUI), in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), preimplantation genetic diagnosis (PGD) and Gestational subrogation.

Surrogacy, in particular, has attracted many couples without children to India in recent decades. Surrogacy is an agreement in which a woman (the surrogate mother) offers to take a baby during pregnancy on behalf of a couple, and then return the baby to the parents once she is born. In general terms, the subrogation is of two types: traditional and gestational. Traditional subrogation involves the insemination of the substitute in a natural or artificial way with the semen of the male partner of the couple without children. A child born in this way is genetically related to the surrogate mother. This has several ethical, social and legal implications. In the case of gestational subrogation, an embryo of the ovule and sperm of the intended partner is fertilized in a test tube and transferred to the uterus of the surrogate mother. A child born through a gestational surrogacy has no genetic similarity to the surrogate mother.

While many couples benefited from subrogation facilities in India, the practice has persisted without any legal framework, working only on the basis of vague guidelines. In these circumstances, many incidents of unethical practices around subrogation have been reported. These practices include the exploitation of surrogate mothers, the abandonment of children born from surrogacy and the importation of human embryos and gametes.

There has been a widespread condemnation of commercial subrogation due to these same problems. In 2014, an Australian couple refused to accept one of their biological twins born through subrogation due to the child’s gender. Many poor women in India became surrogate mothers repeatedly despite the serious implications for their health. Despite this, commercial subrogation was confirmed by the Supreme Court ruling in the case of Baby Manaji v Union of India. Similarly, in the case of Jan Balaz against the municipality of Anand, the Superior Court of Gujarat (HC) reiterated the ruling of the superior court confirming the commercial subrogation. The HC said that commercial subrogation was considered legal in India, since there was no law prohibiting parent loans or subrogation agreements.

In its 228th report submitted in 2009, the Law Commission of India recommended that subrogation be regulated by appropriate legislation. The Legal Commission recommended legalizing the only altruistic subrogation and totally prohibiting commercial subrogation.

The Subrogation Bill (Regulation) of 2019 was approved by Lok Sabha on August 5. The Rajya Sabha, at its meeting held on November 21, 2019, approved a motion to refer the bill to a Select Committee.

The committee studied best practices in subrogation worldwide taking into account Indian needs. In the United States and Argentina, subrogation requests are decided by independent subrogation committees. In the United Kingdom, the Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada and Greece, only altruistic subrogation is allowed. Commercial subrogation is legally allowed in countries such as Russia, Ukraine and Thailand. In France, Germany, Spain, Sweden, Italy and Iceland, subrogation is prohibited in all its forms.

The Subrogation Law Project (Regulation) is an ethical, moral and social legislation, since it protects the exploitation of the surrogate mother and protects the rights of the child born through subrogation. It seeks to establish a national subrogation board, state subrogation boards and the appointment of appropriate authorities for the regulation of the practice and the subrogation process.

To begin with, the couple seeking subrogation will have to provide a compelling condition for wanting a child through subrogation. They must be Indians, but they can also be non-resident Indians, people of Indian origin or foreign citizens of India. The surrogate mother needs to be married and have her child, since some subrogation procedures can cause infertility. Single women cannot choose to have a child through subrogation, but exceptions have been made for widows and divorced women if they obtain a certificate of recommendations from the National Subrogation Board. A 16 month insurance coverage is proposed for the surrogate mother to take care of all her medical needs in case of emergency conditions / complications. Subrogation clinics cannot perform procedures related to subrogation unless they are registered with the corresponding authority.

Surrogacy is a blessing for many couples without children. The bill seeks to ensure that as long as couples without children get what they want, no one, including the surrogate mother and children born from surrogacy, suffers.

Bhupender Yadav is a deputy and chairman of the Rajya Sabha select committee on the right of subrogation.

The opinions expressed are personal.

Hindustan Times