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Tracking the trip and the defects of the subrogation law – analysis


The government has tried to regulate subrogation for more than a decade. Beginning with the 2005 permissive guidelines of the Indian Medical Research Council, the government has proposed increasingly restrictive bills in 2008, 2010, 2013 and 2014 and, through notifications from the Ministry of Interior, has tried to exclude future parents based on marital status, sexual orientation and citizenship. These efforts culminated in the Subrogation Bill (Regulation), 2016.

It is said that to reflect the “ethos of the Indian people,” the bill, unlike the past, dealt exclusively with subrogation rather than Assisted Reproduction Technology (ART) in general. Prohibited commercial subrogation, only allowed altruistic subrogation, which also made a close relative of the couple, where the latter is responsible for medical expenses and insurance costs.

Prospective parents had to be Indian citizens (foreign citizens of India, or OCI were excluded), and married for at least five years with a medical indication of infertility. The provisions of the bill would be implemented by an elaborate institutional machinery, backed by strict punishment.

When it was presented at the Lok Sabha in 2016, it was referred to a Standing Parliamentary Committee (PSC), which, in its August 2017 report, virtually reversed all the key features of the 2016 bill and recommended bringing the substitutes together in instead of recruiting a close relative and allowing compensated subrogation, along with broader insurance coverage. Couples living at home, divorced women, widows, non-resident Indians (NRIs), persons of Indian origin (PIO) and OCIs could take advantage of subrogation and the period of proven infertility would be reduced to one year. It is important to note that he asked for a comprehensive and legally binding agreement between the prospective parents, the surrogate and the clinic, which would be registered in the State.

Despite these recommendations, Lok Sabha approved in August 2019 a largely unmodified version of the 2016 bill, namely the Subrogation (Regulation) Bill, 2019 (SRB). When he presented himself to Rajya Sabha, he was referred to a select committee, which presented his report on February 5, 2020.

The select committee recommended involving a “willing woman” to perform the subrogation instead of a close relative, eliminated the need to demonstrate five years of proven infertility, increased insurance coverage for the surrogate mother to three years, expanding it to include expenses doctors and allowing the widow. and divorced women and PIO and OCI to pursue subrogation. Significantly, he emphasized that the ART bill be approved before the JUR, given the medically subrogated nature.

Where the selected committee differs from the PSC is its preference for altruistic subrogation.

A selfless substitute was performing a “social and noble act of the highest level”, giving the example of a “model woman” in society along with “normal mothers.” Consequently, the select committee recommended that substitutes be allowed insurance coverage, medical expenses and “prescribed expenses” to cover the costs of food and maternity clothing to ensure their well-being and maintenance. There are no more details on what these expenses might include (as opposed to the PSC report).

Here lies an interesting paradox. Like the defenders of the JUR, the select committee believes that the epitome of Indian motherhood is to produce children for the market, with “warmth and divine affection,” regardless of the detriment of one’s own well-being and family. Or it could be that, although the committee has valued free reproductive work in homage to altruism, in reality, the inclusion of the term “prescribed expenses” leaves the middle door open for some form of compensation, especially since the agreement is not limited to “close relatives”.

Although the JUR seemed to thwart the possibility of subrogation itself through strict eligibility criteria for both future parents and the surrogate mother, with restricted payments (medical expenses and insurance coverage) and only for the internal market, the selection committee It expands the eligibility criteria and allows the OCIs and IOPs to seek subrogation, thus opening up the internal market.

But, he hopes that the substitutes hoping to be “role models” for society will take a child to strangers to term without compensation, even when the OCIs and wealthy IOPs commission the subrogation. Who would these “willing women” be and how will the government avoid their exploitation and forced labor since beggar and unpaid work violates art. 23 of the Constitution?

The recommendations of the select committee on the inviability of the JUR approved by the Lok Sabha are very welcome. The government now has the reports of two parliamentary committees in which the collective wisdom of more than 50 members of Parliament has demanded a fundamental revision of the JUR.

However, the critical aspects of subrogation regulation remain intact: that of assessing the reproductive work of substitutes and non-discriminatory access to subrogation, regardless of marital status (as in the case of adoption).

Although strict penalties for crimes are integrated into the JUR, in the absence of robust implementation mechanisms, they are likely to result in fewer convictions, thus producing shadow markets for commercial subrogation. If approved, obvious omissions can bind the JUR in constitutional litigation for years, which makes the legal landscape uncertain (once again) for those who hope to form families through subrogation.

Prabha Kotiswaran is a professor of law and social justice at King’s College in London. Sneha Banerjee is a postdoctoral researcher at the Center for Women’s Development Studies.

The opinions expressed are personal.

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