The biggest blanket assumption that the Surrogacy (Regulation) Bill makes is that all surrogacy centres have been exploiting would-be mothers. It doesn’t fit with the existing legislation around reproductive rights or gender justice
Our sexual and reproductive rights are realised only when the country’s laws and policies reflect these in totality for everyone. On December 19, 2018, the Lok Sabha passed the Surrogacy (Regulation) Bill banning commercial surrogacy, which has been legal since 2002. The Bill is intended to regulate malpractices related to surrogacy and has managed to become restrictive and counterproductive to the very principles it was trying to uphold. Surrogacy is basically an arrangement between a woman and a couple or individual, often supported by a legal agreement, whereby the woman (surrogate mother — SM) agrees to become pregnant and give birth for another person or persons (commissioning parent/s — CP). Routinely, assisted reproductive techniques are used for pregnancy, most often using the intended parent’s eggs and sperms. In case that is not possible, either a donor egg or sperm or both are used. This has been possible due to advancement in scientific technology around assisted reproduction. However, these variations and the lack of clarity around legal status of this arrangement have really been the reason for some tragic past incidents.
From 2002 until this Bill was passed, commercial surrogacy was possible and a real option for realising reproductive rights of countless individuals and couples who could not conceive, women who were at high risk of death and disability if they chose to be pregnant, single people of any sexual orientation and so on. Unfortunately, what queered the pitch were several incidents of would-be parents abandoning the surrogate mothers with their new-borns and subjecting them to exploitative conditions and meagre compensation. It was largely felt that the rights of surrogate mothers were exploited and needed protection.
The issue of surrogacy is primarily linked to reproductive rights of individuals. Besides, right to scientific progress is a human right that must be central to this debate. The rights to procreate and enjoy the progress of scientific advancement are interlinked in this discourse. However, the recent Bill will translate in suppressing these rights. It has defined conditions for commissioning the surrogacy and promises to regulate the process. However, what it does is ban commercial surrogacy and makes altruistic surrogacy by a ‘close relative’ the only route possible. It also allows only married couples to be eligible for opting surrogacy, that too, if they don’t have any child and are infertile for five years.
These conditions are based on multiple assumptions, which include, a close relative who would be willing and capable of undergoing surrogate motherhood without any emotional exploitation and future repercussion. Further, it also takes for granted that the couple unable to conceive would share everything about their medical conditions within the family and that the five-year wait is appropriate. Assuming these to be a blanket truth is dangerous.
The biggest assumption that the Bill makes is that all surrogacy centres have been exploiting surrogate mothers. It fails to take into account all those centres where the practice is regulated and the rights of surrogate mothers are protected. These centres have a fixed remuneration, about which surrogate mothers are informed at the outset. They are given care and support along with nutrition and medication for a healthy pregnancy. The counselling and legal representation help in keeping it a fair and rights-based arrangement for all and the legality of parenthood is clear. There has been so many children born of a surrogacy procedure and being raised in the last decade that such practices should have been examined and strengthened instead of completely being curbed.
Today, where marital relationships may or may not have societal and parental approvals due to caste and religion, such couples now have no option if they hope to have a surrogate baby through an altruistic relative. Also, as the demographics change from multiple siblings and larger families to single or two child families, the availability of an altruistic relative would dwindle in times to come.
The Bill also violates the reproductive rights of same sex couples, live-in couples, singles and transgenders. Ironically, other laws, like the Protection of Women from Domestic Violence Act, 2005 and the recent repeal of some sections under the Indian Penal Code, Section 377 and the Transgender Persons Bill 2018 (Transgender Persons (Protection of Rights) Bill, 2018), recognise the rights of cohabitation and same sex relationships. Thus, the Bill really does not conflate coherently with existing legislation around reproductive rights and gender justice.
Historically, one consistent flaw with most of our policies and laws has been the failure to constitute and manage the processes necessary for compliance. The district-level committees responsible for registration of clinics for carrying out medical termination of pregnancies (MTP) are non-existent in most districts. Under such circumstances, establishing national board and other structures to define and approve surrogacies seems a distant reality for many people.
India is a country where multiple realities co-exist. Changing narratives add to differences that arise in communities due to education, migration, influence of popular media and socio-cultural norms. These differences need to be understood and accounted for while drafting legal instruments, otherwise a blanket and superficial view would skew the purpose of these laws. This Surrogacy (Regulation) Bill has failed in its promise to uphold the reproductive rights of most Indians who desire to have a progeny using the latest scientific advances through fair means.
(Dr Kalpana Apte is the Secretary General (CEO) at Family Planning Association of India. Dr Shamla Dupte is the Director for Medical at Family Planning Association of India)
