In an important development, the Union Cabinet on 26th February 2020 approved the new Surrogacy (Regulation) Bill 2020, allowing any ‘willing’ woman to be a surrogate. The Bill took a backseat due to the COVID-19 pandemic but is expected to be introduced as the 2021 Bill in the Lower House of the Indian Parliament in its upcoming session. Though the Bill is a significant improvement to the Surrogacy (Regulation) Bill 2019, it continues to adopt a needs-based approach rather than a rights-based approach, thereby failing to give women the autonomy they deserve.
The major debate around surrogacy is the conflicting interests of its different stakeholders. On one hand, is the state’s duty to prevent exploitation of the surrogate and to protect the interests of the to-be-born child. On the other hand, is the right of women to make their own reproductive choices and the right of persons to parenthood. India’s regulation of surrogacy has struggled to find a balance between these conflicting interests.
Commercial surrogacy was legalized in India in 2002, and due to the absence of regulations, low cost of fertility clinics, and a large supply of poor women willing to provide this service, India became a hub for transnational surrogacy. However, the women who chose to become surrogates were subjected to exploitation, poor living conditions, and unethical treatment. It was only after the controversial case of Baby Manji Yamada v. Union of India, that the ethical side of commercial surrogacy came into public scrutiny.
Consequently, attempts were made from 2008 – 2014 to pass legislation regulating surrogacy, however, none of these materialized. Activist and lawyer Jayashree Wad also moved the Supreme Court highlighting the pitfalls of the surrogacy industry. Though she was unable to get relief from the Court, her petition shaped public opinion and created significant pressure upon the Government to pass legislation. Resultantly, the Surrogacy (Regulation) Bill, 2016 was introduced and passed by the Lok Sabha. However, the Rajya Sabha did not pass the bill and asked a Parliamentary Standing Committee to examine its provisions. This exercise culminated in the 102nd Report in 2017, which suggested progressive changes to the 2016 Bill.
Despite this, the 2019 Bill ignored the recommendations of the Parliamentary Committee and was an exact replica of the 2016 Bill. It banned commercial surrogacy and permitted only altruistic surrogacy thus preventing the surrogate from availing monetary compensation for her services. Such a restriction strips women of their autonomy in making reproductive choices and reinforces traditional societal values of women’s work in the private sphere having no economic value. Once again, the Bill was not passed by the Rajya Sabha, and a Select Committee was formed to recommend changes to the legislation.
This Committee recommended deleting the clause which defined ‘infertility’ and required a five-year waiting period before issuance of an infertility certificate, thereby making access to surrogacy easier. It also recommended deleting the clause which only allowed for close relatives to act as surrogates saying that it “ignores the ground reality of most Indian families where women have little decision-making authority” and that this will create a situation where women will be coerced by their families into providing reproductive labour. While the Committee has corrected some of the flaws of the 2019 Bill, it still retains others, which too are restrictive and discriminatory. Moreover, it maintains a needs-based approach towards accessing surrogacy instead of advancing a rights-based approach.
These developments come amidst a growing trend of the Supreme Court broadening the scope of ‘liberty’ under Article 21 to include the right to make reproductive choices. By banning commercial surrogacy, the Bill does not take into account the intersectional aspects of how the law would impact women’s right to their bodies. The altruistic model expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’. Such an expectation is paternalistic, unrealistic, and patriarchal in its approach. Its effect is the denial of a legitimate source of income to surrogates. This in turn severely limits the number of women willing to go through surrogacy, and indirectly denies intending parents the opportunity to avail of it.
The proposed Bill also continues to deny this opportunity to LGBTQ+ persons, live-in couples, and single parents. Even those included within its ambit are required to have a ‘certificate of essentiality’ stating that it is biologically impossible for the person(s) to have a child in any other way. It does not consider other medical conditions which even though do not render women infertile, make the pregnancy riskier and more difficult.
It also does not consider cases where women might not want to go through pregnancy due to career-related commitments. Consider the case of a sportswoman, whose career span tends to coincide with her child-bearing age. In such a case, the woman must make a choice between taking a break from the already limited active time in her career, and motherhood. This hardly seems fair, and begs the question: Should a woman have to make this compromise?
The answer, we believe, must be in the negative. The need of the hour is to recognize surrogacy as a ‘right’ and not a ‘need’. The moral grounds for making surrogacy a last resort are outdated. Denying women, the right to avail of surrogacy by saying the “joy of bearing one’s own child cannot be compared to having one through surrogacy” reeks of patriarchal mores. When placed in a rights-based discourse, the State becomes obligated to play a crucial role in furthering reproductive rights and freedoms so as to improve reproductive health.
The regulation around surrogacy ignores the potential loss of earnings of the surrogate because she will effectively have to put her life on hold during the later stages of pregnancy. Instead of the Select Committee romanticising altruistic surrogacy by calling it a “social and noble act of the highest level” which “sets an example of being a model woman in the society”, a compensated surrogacy model should have been adopted, where the intending parents not only bear all medical expenses related to the pregnancy and post-partem care, but also compensate the surrogate mother for any loss of income caused by the pregnancy. She must also be compensated for any expenditure incurred in relation to the pregnancy, including maternity clothing, additional nutrient supplements to sustain the pregnancy, dietary expenditure, etc.
Unless such reforms are implemented, and availing surrogacy is recognized as a reproductive right, surrogacy regulation in India will not be able to protect the bodily autonomy of the surrogate and the right to parenthood of the intending parent(s). Although India is going through a revolutionary time whereby the citizens’ thinking process is undergoing a radical shift away from the patriarchal norms to more feministic ethos; the proposed surrogacy legislation serves as a black spot on the progressive growth of the notion of equality in India.
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