The Bill has an intention of preventing the exploitation of women serving as surrogates, however, some of its clauses have led to outrage in general public, as well as the medical community.
The Surrogacy Regulation Bill 2016, passed by the Health Ministry, was cleared by the Union Cabinet on August 24, 2016; and is set to be introduced in the Parliament soon. Within a span of one week, the draft bill had received severe backlash, being cited as “discriminating and draconian”. Although the Health minister JP Nadda stated that the Government is still open to ideas for improvement, he added that no compromises would be made on the clauses relating to the “exploitation of women and abandonment of surrogate children”.
After India legalised commercial surrogacy in 2002, it slowly gave rise to a booming industry of foreign surrogacy requirements and fertility tourism, so much so that commercial surrogacy was banned in 2015. The booming surrogacy industry, the easy abandonment of children, and the exploitation of women who were forced to become surrogates many times in order to sustain their family; led to the necessity of this Bill.
“The Bill limits surrogacy to cases wherein only an “altruistic relative” of the couple can become a surrogate mother. This limits the possibility of surrogacy to a large extent, which is already considered as a last resort.”
The cumulative effect of these provisions coupled with the fact that under the new law, a woman could only become a surrogate once, severely limits the possibilities for the couples. “The Government is saying in 99 per cent cases, a woman becomes a surrogate because she wants compensation. But going by that number, 99 per cent of those who want a child through surrogacy will no longer have any options,” says fertility specialist, Dr. Shivani Sachdev Gour.
Even though childless couples can choose to adopt, there exists a cultural preference of a ‘true heir’ in the Indian society which rules out adoption for some. The couples, who do choose to adopt, undergo a long, tedious process which sometimes leads to no result. If the Government does intend to curb surrogacy in favour of adoption, then that would require the streamlining of the adoption procedures.
One of the most contentious points of the Bill is its blatant ban on egg donations, which were parallel to the surrogacy process, perhaps in order to curb child trafficking and illegal surrogacy racket. This implies that if the commissioning father is infertile, the egg of the commissioning mother can be fertilised by the sperm from an anonymous sperm donor. However, if the commissioning mother is infertile, an anonymous egg donor cannot be approached. This particular provision in the Bill is highly discriminatory in terms of gender, and calls for immediate relooking. As Dr P Sinha, senior gyneacologist, points out, “There are young women whose ovary reserves of eggs are getting over at the age of 26 years. If they marry at 18 years of age they are denied treatment as the five-year-waiting period is to be completed. Also, what about women marrying at 40 years of age? Are they not to bear children?”
The Bill also disregards surrogacy rights of homosexual couples. Even though this ban could be construed as a mere following of the law (Section 377 against “unnatural” intercourse- which is currently in question at the Supreme Court), this would only make sense if heterosexual couples also violating the Section were denied surrogacy rights. Since there is no way to conclusively find out, this is obviously a huge denial of justice to the queer community. Furthermore, since according to marriage laws only heterosexual couples are allowed to get married; the explicit stating of the ban of surrogacy to homosexual couples not only highlights the transparent homophobia of the lawmakers, but also means that the LGBTQI community has little to no rights when it comes to embracing their own sexuality.
Additionally, limiting a woman’s surrogacy choice to only one time is in a large way limiting the income of those who survive on this business. This leads us to the issue of consent. If a woman freely consents to becoming a gestational carrier for an infertile couple, and understands the risks involved and agrees to the benefits being accrued to her, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy?
The issue of ‘exploitation’ of women is a legitimate one. Just as in the case of sex work, when a woman is coerced into the business because she has no choice, and because she desperately needs the financial resources, it does not mean that she has fully consented to the job. It means that she has not been provided, or is not able to find, alternate employment to sustain herself. However, if she is consenting and is being paid the proper amount, then this should not be an issue at all. In certain European countries, sex work is fully regulated and sex workers have full constitutional rights, unlike in India which has pushed sex work into an underground market.
“However, sometimes we are quick to criticise policies without understanding the true extent of the situation. The Bill is extremely necessary in certain places in India; for example, Gujarat, where ‘baby farms’ exist, i.e. underprivileged women are rounded up in scores and given out as surrogates to potential parents.
Here, there is a paradox which the government needs to tackle: women are being exploited as baby-carriers, but this is a source of income; and if this ‘exploitation’ stops, then how will they survive? In this industry, middlemen play a large role and take huge slices of the amounts paid by the parents, and only about 25 per cent ends up with the actual surrogate mothers. And now, though the Bill would greatly benefit these women, where will they go for wages?
Although formulated to curb the exploitation of women and trafficking of children; again, the Bill exhibits the general policy of a state banning or censoring an activity almost completely, instead of looking at ways to use laws to regulate and improve the situation. Additionally, while most countries, especially in Europe, only allow altruistic surrogacy, surrogate mothers are not limited to relatives, and medical expenses are covered. It can be said that although India has not banned surrogacy completely (like Germany, France and Italy), the laws need to be re-looked so that they actually benefit surrogate mothers, prospective parents, and children born from surrogacy.
“Banning commercial surrogacy will only push it into an unregulated, underground market where the very exploitation of women that has been tried to be controlled through this Bill will grow unchecked, manifold.”
Instead of completely banning commercial surrogacy, the provisions incorporated might effectively ban surrogacy in India. The clear economic and social implications of this law can only be witnessed as it comes into being, but from where we stand now, the outcome looks grim.
(This is the final part in a two-part series on surrogacy and its regulation in India.)
