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:
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:
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]
Bihar became the first state to scrap the MLA Local Area Development Fund scheme (MLALAD). According to news reports, Nitish Kumar, Bihar’s Chief Minister, is planning to replace it with the CM Area Development Programme, which would be implemented at the District level. The schemes would be selected by a district selection committee headed by the minister-in-charge and MLAs and MLCs of that district as members. The implementation shall rest with a body of engineers, headed by Engineer-in-chief. The district magistrates would only monitor implementation and contractors would be chosen through open tendering in which a representative of the Comptroller and Auditor General of India (CAG) would be present. The state government would allocate funds as per requirement. The MPLAD and MLALAD scheme was introduced in December 1993 by former Prime Minister, P.V. Narasimha Rao to enable legislators to execute small works of a local nature to meet the urgent needs of their constituents. Under the scheme, each legislator may identify projects and sanction upto Rs 2 crore per year for public works in their constituencies. The scheme was mooted after MPs demanded that they should be able to recommend certain development projects in their constituencies. The projects include assets building such as drinking water facilities, primary education, public health sanitation and roads. The initial amount allocated was Rs 5 lakh per year to each MP. It has however not been smooth sailing for the scheme. Besides the many implementation lapses (as pointed out by the Standing Committee on Finance in 1998-1199, the CAG and the Planning Commission), the constitutionality of the scheme has been questioned by various scholars and experts. In 2002, the National Commission to Review the Working of the Constitution recommended immediate discontinuation of the MPLAD scheme on the ground that it was inconsistent with the spirit of federalism and distribution of powers between the centre and the state. Former MP, Era Sezhiyan in a booklet titled ‘MPLADS – Concept, Confusion and Contradictions’ also opposed the scheme and recommended that it be scrapped since it ran contrary to the Constitutional provisions which envisaged separate roles for the Executive and Legislature. However, the Committee on MPLADS in its 13th Report and its 15th Report stated that there was nothing wrong with the scheme per se except some procedural infirmities and recommended among other things a change of nomenclature to the Scheme for Local Area Development. The debate continued with the 2nd Administrative Reforms Commission’s report on “Ethics in Governance” taking a firm stand against the scheme arguing that it seriously erodes the notion of separation of powers, as the legislator directly becomes the executive. However, in response to a Writ Petition that challenged the constitutionality of the MPLAD scheme as ultra vires of the Constitution of India, in May 2010, a five-judge bench of the Supreme Court ruled that there was no violation of the concept of separation of powers because the role of an MP in this case is recommendatory and the actual work is carried out by the Panchayats and Municipalities which belong to the executive organ. There are checks and balances in place through the guidelines which have to be adhered to and the fact that each MP is ultimately responsible to the Parliament. Meanwhile, some MPs are pushing for hiking the amount allocated under the scheme to Rs 5 crore. However, no decision has been reached yet. The Ministry of Statistics and Programme Implementation has suggested that a single parliamentary committee be formed comprising of members of both Houses of Parliament to monitor MPLAD schemes. While the question of constitutionality of the MPLAD scheme may have been put to rest by the Supreme Court ruling, other issues related to implementation of the scheme still remain. Unless problems such as poor utilisation of funds, irregular sanction of works, delay in completion of works are tackled in an efficient manner, the efficacy of the scheme will remain in doubt.
