By Tanu Singh, Ramjas College, New Delhi.

Surrogacy, a highly controversial issue beset with many ethical, social, and legal dilemmas, has finally met its fate in the light of the new regulation Bill passed by the Indian government. On August 5, Lok Sabha passed the Surrogacy (Regulation) Bill, 2019 which was introduced by the Minister of Health and Family Welfare, Dr. Harsh Vardhan on 15th July and is still up for passage in the Upper House.

Basically surrogacy is a contract in which a woman carries a pregnancy “for” another couple. For years, surrogacy has been condemned by many, especially in its commercial form. Women are coerced into bearing children for rich couples, abort in case of disabilities and risk their lives. Commercial surrogacy agents use them as a means to make money by renting their wombs. Sometimes greedy doctors implant more than one embryo into a woman’s womb without her knowledge and sell them as ‘extra babies’. In the absence of any strict laws and lack of clarity over legal rights of the parties involved, it is very easy for commercial surrogacy agencies to exploit surrogates as they wish. It was thus necessary to formulate a law that could curb such unethical practices surrounding surrogacy. 

The Bill defines surrogacy as ‘a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple’, wherein intending couple is the one that wishes to have a child through surrogacy. Surrogacy itself is not an unethical practice. Had it been so, the Bill would have banned it completely. On the other hand, even if the government would have legalised it, it would not have made it less exploitative or dangerous to women. 

The Bill has instead restricted surrogacy to being only altruistic and banned its commercial form. “Altruistic Surrogacy” means surrogacy which includes no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage are given to her. It is argued that altruistic surrogacy intends to not treat human life as a commodity as is the case with commercial surrogacy in which surrogates are expected not to be emotionally attached to the life they carry for nine months.They are not even allowed to see the child soon after birth. It appears to be nothing more than the commodification of children who are developed in a surrogate’s womb and sold to a childless couple. It may be a boon for such couples who have no other alternative left but intrinsically commercial surrogacy has little to stand on ethical grounds.

As per the Bill, ethical altruistic surrogacy is allowed only for infertile Indian married couples who have been married for at least five years and do not have any surviving children, not including a special child or a child who suffers from a life threatening illness. The surrogate mother should be a “close relative” of the intending couple, married and having a child of her own and between the age of 25-35 years and a surrogate only once in her lifetime. 

First of all, the pernicious nature of the Bill is evident by its prohibition of live-in partners, same-sex couples, single-parents, divorced and widowed from using surrogacy services.

Secondly, the provision that the surrogate should be a ‘close relative’ is based on the mistaken belief that women are not exploited 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. If a daughter-in-law is forced to become a surrogate for the daughter in the family, and she may not be able to say no, then this leads to exploitation. The Bill has evidently moved the site of exploitation within the opaque walls of home and family.

There are stories of commercial surrogacy benefitting the surrogate mothers by improving their lives. Vandana, a 32-year-old woman from Gujarat earned an annual income much higher than her income as a domestic worker. She thinks of it as a win-win situation where she and her family are able to lead a better life while helping someone complete their own family. 

However, the horrific side of commercial surrogacy is big enough to overshadow any positive impact. Surveys done in Delhi and Mumbai show that most of the time surrogates are duped and not given the money they are promised. These women, who are usually poorly educated, are not even given a copy of their contracts. The intended parents also avoid meeting them and the whole contract is managed by the middlemen who are free to exploit the surrogates in the absence of any law. Under the new Bill which allows only altruistic surrogacy where the surrogate has to be a close relative of the couple, such exploitation can possibly be curbed. The Bill attempts to prevent any exploitation within the families by the provision that no person including a relative or husband shall seek or encourage to conduct any surrogacy procedures on her without her written informed consent. Also, in cases of surrogacy, the court will presume that the woman or surrogate mother was compelled by her husband, the intending couple or any other relative to render surrogacy services, unless the contrary is proved. The provisions of the bill clearly states that no person, organisation or clinic shall exploit the surrogate mother or abandon, disown or exploit the child or children born through surrogacy. This provision is plausible as it was seen that the intending couple used to refuse the newborn in case of any deformity and the burden of the child was left on the surrogate mother.

The Bill not only bans commercial surrogacy but also establishes an authority to keep vigilance into matters connected with it and prevent the commercial surrogacy market to operate underground. It lays down guidelines for the constitution of National and State Surrogacy Boards and appointment of ‘appropriate authorities’ which shall be the executive bodies for implementing the provisions of the Act. It requires the registration of surrogacy clinics and puts a heavy penalty on those who are found operating in illegal ways. Contravention of any provisions shall be an offence punishable with imprisonment for a term which shall not be less than ten years and with fine upto ten lakh rupees. It would be very difficult for commercial surrogacy rackets to function if the laws are efficiently implemented.

There is a line of thought that the Bill scraps the right of a woman who chooses to be a surrogate to become financially independent. But, she cannot do so under the new law. It is argued that the paternalistic state has scrapped the agency of women over their bodies and mystified motherhood as sacred. 

But the criticism of the Bill on this point cannot be accepted if the dignity and value of human life is to be maintained. We cannot seek liberation of women through trading of babies. If we do not allow the sale of human beings, then how can we deem such trading as ethical? 

The Bill aims to substantially curb the unethical practices of the sale of newborns and human embryos while asserting the dignity and rights of all women. It tries to address the issue of rampant commercialisation and exploitation of surrogates. But it imposes many unnecessary and vague conditions on the intending couple and the surrogate to be eligible to undertake surrogacy. The Bill needs defining of certain terms like ‘close relative’. Through this Bill the government strives to regulate the vastly complex area of surrogacy. However, it can achieve this objective only if it reviews and redefines certain provisions to make this process easier for the parties involved. Otherwise, the skepticism around the Bill that it will not be able to sensitively balance the needs of ‘intending parents’ and surrogates will persist.