The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016 and is listed for passage this week.  The Bill regulates altruistic surrogacy and prohibits commercial surrogacy.  We present a brief overview of the Bill and some issues that may need to be considered:

How is surrogacy regulated under the Bill?

The Bill defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child after the birth to them.  The Bill allows altruistic surrogacy which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother.  Commercial surrogacy is prohibited under the Bill.  This type of surrogacy includes a monetary benefit or reward (in cash or kind) that exceeds basic medical expenses and insurance for the surrogate mother.

What is the eligibility criteria for couples intending to commission surrogacy?

In order to be eligible, the couple intending to commission a surrogacy arrangement must be a close relative of the surrogate mother.  In addition, the couple has to prove that they fulfil all of the following conditions:

  • They are Indian citizens who have been married for at least five years;
  • They are in the age group of 23-50 years (female partner) and 26-55 years (male partner);
  • A medical certificate stating that either or both partners are infertile;
  • They do not have any surviving child (whether biological, adopted or surrogate), except if the surviving child is mentally or physically challenged or suffers from a fatal illness;
  • A court order concerning the parentage and custody of the child to be born through surrogacy;
  • Insurance coverage for the surrogate mother.

Additional eligibility conditions that the intending couple need to meet may be specified by regulations. It could be argued that the qualifying conditions for surrogacy should be specified in the Bill and not be delegated to regulations.

Who is a close relative under the Bill?

The Bill does not define the term close relative.

Who is eligible to be a surrogate mother?

The surrogate mother, apart from proving that she is a close relative of the couple intending the surrogacy, also has to prove all the following conditions:

  • She was or is married and has a child of her own;
  • She is 25 to 35 years old;
  • She has not been a surrogate mother before;
  • She possesses a medical certificate of her fitness for surrogacy.

What will be the legal status of a surrogate child?

The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child.

What is the process for commissioning a surrogacy?

The intending couple and the surrogate mother can undergo a surrogacy procedure only at surrogacy clinics that are registered with the government.  To initiate the procedure, the couple and the surrogate mother need to possess certificates to prove that there are eligible.  These certificates will be granted by a government authority if the couple and the surrogate mother fulfill all the conditions mentioned above.  The Bill does not specify a time period within which the authority needs to grant the certificates.  Further, the Bill does not specify a review or appeal procedure in case the application for the certificates is rejected.

What is the penalty for engaging in commercial surrogacy under the Bill?

The Bill specifies that any person who takes the aid of a doctor or a surrogacy clinic in order to conduct commercial surrogacy will be punishable with imprisonment for a minimum term of five years and a fine that may extend to five lakh rupees.

Offences such as (i) undertaking or advertising commercial surrogacy; (ii) exploiting or abandoning the surrogate mother or child; and (iii) selling or importing human embryo or gametes for surrogacy will attract a minimum penalty of 10 years and a fine up to 10 lakh rupees.

[This post has been co – authored by Nivedita Rao]

Recently, the Standing Committee on Health and Family Welfare submitted its report to the Parliament on the National Commission for Human Resource for Health Bill, 2011.  The objective of the Bill is to “ensure adequate availability of human resources in the health sector in all states”.  It seeks to set up the National Commission for Human Resources for Health (NCHRH), National Board for Health Education (NBHE), and the National Evaluation and Assessment Council (NEAC) in order to determine and regulate standards of health education in the country.  It separates regulation of the education sector from that of professions such as law, medicine and nursing, and establishes professional councils at the national and state levels to regulate the professions. See here for PRS Bill Summary. The Standing Committee recommended that this Bill be withdrawn and a revised Bill be introduced in Parliament after consulting stakeholders.  It felt that concerns of the professional councils such as the Medical Council of India and the Dental Council of India were not adequately addressed.  Also, it noted that the powers and functions of the NCHRH and the National Commission on Higher Education and Research (to be established under the Higher Education and Research Bill, 2011 to regulate the higher education sector in the country) were overlapping in many areas.  Finally, it also expressed concern over the acute shortage of qualified health workers in the country as well as variations among states and rural and urban areas.  As per the 2001 Census, the estimated density of all health workers (qualified and unqualified) is about 20% less than the World Health Organisation’s norm of 2.5 health workers per 1000 population. See here for PRS Standing Committee Summary. Shortfall of health workers in rural areas Public health care in rural areas is provided through a multi-tier network.  At the lowest level, there are sub health-centres for every population of 5,000 in the plains and 3,000 in hilly areas.  The next level consists of Primary Health Centres (PHCs) for every population of 30,000 in the plains and 20,000 in the hills.  Generally, each PHC caters to a cluster of Gram Panchayats.  PHCs are required to have one medical officer and 14 other staff, including one Auxiliary Nurse Midwife (ANM).  There are Community Health Centres (CHCs) for every population of 1,20,000 in the plains and 80,000 in hilly areas.  These sub health centres, PHCs and CHCs are linked to district hospitals.  As on March 2011, there are 14,8124 sub health centres, 23,887 PHCs and 4809 CHCs in the country.[i]  Sub-Health Centres and Primary Health Centres

  • § Among the states, Chhattisgarh has the highest vacancy of doctors at 71%, followed byWest Bengal(44%),Maharashtra(37%), and Uttar Pradesh (36%). On the other hand, Rajasthan (0.4%), Andhra Pradesh (3%) and Kerala (7%) have the lowest vacancies in PHCs.
  • § Nine states do not have any doctor vacancies at all at the PHC level. These states includeBihar, Jharkhand andPunjab.
  • § Ten states have vacancy in case of ANMs.  These are: Manipur, Uttar Pradesh, Chhattisgarh,Gujarat,Goa, Himachal Pradesh, Tamil Nadu, Haryana, Kerala and Andhra Pradesh.
  • § The overall vacancy for ANMs in the country is 5% while for doctors it is 24%.

Table 1: State-wise comparison of vacancy in PHCs

 

Doctors at PHCs

ANM at PHCs and Sub-Centres

State Sanctioned post Vacancy % of vacancy Sanctioned post Vacancy % of vacancy
 Chhattisgarh 1482 1058 71 6394 964 15
 West Bengal 1807 801 44 10,356 NA 0
 Maharashtra 3618 1326 37 21,122 0 0
 Uttar Pradesh 4509 1648 36 25,190 2726 11
 Mizoram 57 20 35 388 0 0
 Madhya Pradesh 1238 424 34 11,904 0 0
 Gujarat 1123 345 31 7248 817 11
 Andaman & Nicobar Isld 40 12 30 214 0 0
 Odisha 725 200 28 7442 0 0
 Tamil Nadu 2326 622 27 9910 136 1
 Himachal Pradesh 582 131 22 2213 528 24
 Uttarakhand 299 65 22 2077 0 0
 Manipur 240 48 20 984 323 33
 Haryana 651 121 19 5420 386 7
 Sikkim 48 9 19 219 0 0
 Meghalaya 127 23 18 667 0 0
 Delhi 22 3 14 43 0 0
 Goa 46 5 11 260 20 8
 Karnataka 2310 221 10 11,180 0 0
 Kerala 1204 82 7 4232 59 1
 Andhra Pradesh 2424 76 3 24,523 2876 12
 Rajasthan 1478 6 0.4 14,348 0 0
 Arunachal Pradesh  NA  NA NA NA NA 0
 Assam  NA  NA NA NA NA 0
 Bihar 2078  0 NA NA NA 0
 Chandigarh 0 0 NA 17 0 0
 Dadra & Nagar Haveli 6 0 NA 40 0 0
 Daman & Diu 3  0 NA 26 0 0
 Jammu & Kashmir 750  0 NA 2282 0 0
 Jharkhand 330  0 NA 4288 0 0
 Lakshadweep 4  0 NA NA NA 0
 Nagaland  NA  NA NA NA NA 0
 Puducherry 37 0 NA 72 0 0
 Punjab 487 0 NA 4044 0 0
 Tripura  NA  NA NA NA NA 0
 India 30,051 7,246 24 1,77,103 8,835 5
Sources: National Rural Health Mission (available here), PRS.Note: The data for all states is as of March 2011 except for some states where data is as of 2010.  For doctors, these states are Bihar, UP, Mizoram and Delhi.  For ANMs, these states are Odisha and Uttar Pradesh.

 

Community Health Centres

  • § A CHC is required to be manned by four medical specialists (surgeon, physician, gynaecologist and paediatrician) and 21 paramedical and other staff.
  • § As of March 2011, overall there is a 39% vacancy of medical specialists in CHCs.  Out of the sanctioned posts, 56% of surgeons, 47% of gynaecologists, 59% of physicians and 49% of paediatricians were vacant.
  • States such as Chhattisgarh, Manipur and Haryana have a high rate of vacancies at the CHC level.

Table 2: Vacancies in CHCs of medical specialists

  Surgeons Gynaecologists Physicians Paediatricians
State

% of vacancy

 Andaman & NicobarIsland 100 100 100 100
 Andhra Pradesh 74 0 45 3
 Arunachal Pradesh NA NA NA NA
 Assam NA NA NA NA
 Bihar 41 44 60 38
 Chandigarh 50 40 50 100
 Chhattisgarh 85 85 90 84
 Dadra & Nagar Haveli 0 0 0 0
 Daman & Diu 0 100 0 100
 Delhi 0 0 0 0
 Goa 20 20 67 66
 Gujarat 77 73 0 91
 Haryana 71 80 94 85
 Himachal Pradesh NA NA NA NA
 Jammu & Kashmir 34 34 53 63
 Jharkhand 45 0 81 61
 Karnataka 33 NA NA NA
 Kerala NA NA NA NA
 Lakshadweep 0 0 100 0
 Madhya Pradesh 78 69 76 58
 Maharashtra 21 0 34 0
 Manipur 100 94 94 87
 Meghalaya 50 NA 100 50
 Mizoram NA NA NA NA
 Nagaland NA NA NA NA
 Odisha 44 45 62 41
 Puducherry 0 0 100 NA
 Punjab 16 36 40 48
 Rajasthan 57% 46 49 24
 Sikkim NA NA NA NA
 Tamil Nadu 0 0 0 0
 Tripura NA NA NA NA
 Uttar Pradesh NA NA NA NA
 Uttarakhand 69 63 74 40
 West Bengal 0 57 0 78
 India 56 47 59 49
Sources: National Rural Health Mission (available here), PRS.

[i].  “Rural Healthcare System in India”, National Rural Health Mission (available here).