The Lok Sabha passed the Surrogacy (Regulation) Bill 2019 on Tuesday. The Billl aims to regulate the practice of surrogacy in India and allow only “ethical altruistic surrogacy”. The Bill was first introduced in the lower house in November 2016, then referred to the Parliamentary Standing Committee on Health and Family Welfare. It was introduced and passed by the Lok Sabha again in December 2018 without incorporating most of the recommendations of the Committee, but lapsed. The 2019 Bill is identical to the Bill of 2018.

It showcases the state’s heavy reliance on criminal law for managing social issues, criminalisation of choice and prejudiced ideas of what constitutes a family. The Bill disallows single, divorced or widowed persons, unmarried couples and homosexual couples from pursuing surrogacy to have children. It stipulates that only a man and woman married for at least five years, where either or both are proven infertile, can avail of surrogacy. This is blatantly discriminatory and arbitrary.

India’s jurisprudence recognises the reproductive autonomy of single persons, the rights of persons in live-in relationships and fundamental rights of transgenders. In Navtej Singh Johar vs Union of India, Supreme Court, having decriminalised consensual same-sex between consenting adults, held that the law cannot discriminate against same-sex partnerships and that it must “take positive steps to achieve equal protection”. Single persons have the right to adopt children in India. The Bill is out of step with these developments.

The Bill and its immediate ancestors significantly diverge from earlier, more rational policy positions. Guidelines issued by Indian Council of Medical Research in 2002 and the draft Assisted Reproductive Technologies (Regulation) Bills 2010 and 2014 had permitted commercial surrogacy. The shift to altruistic-only surrogacy was made in the context of sensational news reports about cases of surrogate babies being abandoned and exploited — surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children. In 2015, a public interest litigation, Jayshree Wad vs Union of India,was filed in the Supreme Court which cited these media reports and sought to end commercial surrogacy in India. Prompted by the court, the government declared in October 2015 that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy. The Surrogacy Bill of 2016 was a result of this change of intentions.

There is undoubtedly a danger of exploitation and abuse in commercial surrogacy. The cases that have come up establish that possibility. But formulating a law on the basis of exceptions is ultimately counterproductive. Exploitation takes place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. This can be addressed by a strong regulatory mechanism that introduces transparency and mandates fair work and pay for the surrogate mothers. Viewing commercial surrogacy as inherently exploitative and banning it only expands the potential for exploitation as it would force the business underground.

Further, criminalisation of commercial surrogacy is a refusal by the state to actually consider the exercise of agency that leads a woman to become a surrogate mother. Interviews with women who chose to provide gestational services for a fee have shown that it is a well-considered decision made in constrained economic conditions. A ban on commercial surrogacy stigmatises this choice and reinforces the notion of the vulnerable “poor” woman who does not understand the consequences of her decisions and needs the protection of a paternalistic State.

As per the Bill, the surrogate mother must be a “close relative” of the couple. This is premised on the mistaken belief that exploitation and vulnerability do not exist within the family. Knowing the reality of patriarchal families in India, the stigma of infertility, the pressure of producing children to maintain lineage and the low bargaining power of women, it can be expected that young mothers will be coerced into becoming surrogates for their relatives. The Bill moves the site of exploitation into the private and opaque sphere of the home and family. One cannot but question the ethics of this.

The severance of commerce from pregnancy is also tied in to the notion of motherhood being something natural, sacrosanct and above considerations. To be paid for the reproductive labour evokes unease and claims of “dehumanisation” and “commodification” in certain opponents of commercial surrogacy.

The Bill mandates the commissioning couple to only pay for the medical expenses and an insurance cover of sixteen months for the surrogate mother. The Standing Committee had recommended a model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care. The Bill should, at the very least, incorporate these provisions.

The Bill, as it stands, is a poor attempt at regulating reproductive technologies and preventing exploitation of women. Surrogacy is an important avenue for persons to have a child through a willing surrogate mother who can also benefit monetarily from the process. The Bill, that gives short shrift to women’s agency, does little to extend this possibility.

The writer is a gender rights lawyer based in Delhi

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