The Surrogacy (Regulation) Bill, 2019: Oblivious to the Stark Reality
Considering the invasive physicality of a surrogacy procedure the global difference in relation to its legality is unsurprising. Two decades ago, India was one of the few countries that legalized commercial surrogacy. Commercial surrogacy entails monetary compensation to women who choose to be surrogates. Owing to a multitude of women looking to ease their financial hardships commercial surrogacy boomed in India. Unfortunately, this boom was free from any strict regulation, resulting in the exploitation of many surrogates. Thus, despite the creation of income avenues for surrogates there was a dire need for stricter regulation considering the concurrent exploitation. The government’s attempt to plug the exploitation comes through the Surrogacy (Regulation) Bill, 2019 which intends to completely ban commercial surrogacy. The present piece seeks to highlight why a blanket ban can do more harm than good and explore the alternatives to such a far-reaching measure.
Key words: Surrogacy in India, Commercial Surrogacy, Rights of Surrogates
Surrogacy and India is a relationship of great convolution. Commencing with the legalization of commercial surrogacy in 2002 the relationship is seeming to culminate with the passing of the Surrogacy (Regulation) Bill, 2019 (“the Bill”) in the Lok Sabha on 17th December 2021. The new bill aims to completely wipe out the practice of commercial surrogacy in India. Simply put, commercial surrogacy involves a compensatory remuneration for the surrogate as opposed to altruistic surrogacy where a surrogate carries the child for free. The legalization of commercial surrogacy in 2002 resulted in a billion-dollar industry over the next decades. Scores of women opted to be surrogates, most of whom were from low-income households. For them, surrogacy created a route to livelihood; it was a chance to garner a sum much larger than their low paying jobs could yield. However, except for some voluntary Indian Council of Medical Research (“ICMR”) guidelines, this industry was bereft of strict regulation. This resulted in an ecosystem that placed profit on the forefront and the rights of the surrogates on the backend. Banking on their socio-economic vulnerability the women were financially, legally, and physically exploited.
II. THE PRESENT BILL
Due to the lack of regulatory framework, improved legislation on surrogacy was a necessity. While the Bill is a step forward in regulating surrogacy, it falls short of assessing the ground realties. A great number of women voluntarily look towards commercial surrogacy as a source of income; however, the Bill’s intended ban completely precludes this possibility. The Bill permits only altruistic surrogacy. It defines the same as “surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative”. Such surrogacy is limited to only those couples where either one of them or both are infertile. Thus, it excludes single parents, widows/widowers, women who are susceptible to high-risk pregnancies, non-heteronormative partners, and foreigners who may want to opt for surrogacy. The Bill also narrows the pool of suitable surrogates by prescribing the following conditions. Firstly, the surrogate must be a married woman who is a 25–35-year-old. Secondly, she must have a child of her own. Thirdly, she must be a ‘close relative’ of the intending couple. The third parameter is highly problematic; it opens the possibility of coercive surrogacy in regressive patriarchal households. It places unrealistic expectations on women who already have limited autonomy in such households.
The Bill’s intent to curb exploitation associated with commercial surrogacy is necessary, but an outright ban is too extreme and not viable. A ban on commercial surrogacy cannot ensure its eradication. Despite a prohibition on commercial surrogacy, underground practices continue to exist in countries such as China, Thailand, Cambodia, and Brazil. A ban may foster an unregulated underground market that will skyrocket exploitation. Considering the large pool of women willing to be surrogates, the government ought to have created a legislation that strictly regulates commercial surrogacy while reinforcing their right to legitimate income in a dignified manner. Such a legislation should explicitly state that commercial surrogacy entails remuneration only for the service that is offered by the surrogates; this in turn would prevent a ‘children for sale’ situation. It should place the right to health of the surrogates at the forefront and effectuate restrictions on any procedures that could pose a threat to their health. The surrogates must be informed of their legal rights and the medical risks involved at every step. A thorough and elaborate inquiry should be conducted to ensure the surrogates consent to the surrogacy procedure and are present on a strictly voluntary basis. The economic rights of the surrogates should also be prioritized. A minimum and fair remuneration ought to be set up to avoid economic exploitation. Such remuneration must also be coupled with any unexpected medical expenses and insurance that extends to the postpartum care of the surrogate. In the event of a miscarriage, the surrogate must still be paid a fair remuneration. The remuneration must factor in the gestation period, post miscarriage health complications, any post-traumatic stress as well as all medical expenses that may arise.
Surrogacy clinics must be equipped with government appointed liaisons to ensure complete legal and medical transparency between the surrogates and the clinics. Certain surrogates prefer residing away from their homes due to the unfortunate stigma attached to the act of surrogacy. Such residential services, if offered through the clinics, must be thoroughly regulated to ensure dignified and sanitary living conditions. Clinics must be registered under the legislation and adhere to stringent safety and legal standards. These clinics must in turn be publicized through publicly accessible government notices to avoid false representation by clinics that operate illegally. While the present Bill fails to recognize the right to income surrogacy offers women, it has a few positive provisions. The Bill creates the option for the women to withdraw her consent before the embryo is implanted in her womb. It prohibits any person, organisation, surrogacy clinic, laboratory, or clinical establishment from forcing the surrogate to abort at any stage of surrogacy, but most notably the Bill bars the intending couple from abandoning a child irrespective of any genetic defect, birth defect, medical condition, defects that would develop post birth, sex of the child or the event of conception more than one baby.
The legality surrounding surrogacy is contentious around the world, and there is no unanimous approach across jurisdictions. While some countries ban surrogacy completely, some permit only altruistic surrogacy, and others permit both altruistic and commercial surrogacy. As stated previously, a complete ban on commercial surrogacy does not ensure its end. India’s previous attempt to partially ban commercial surrogacy was through a 2015 ICMR notification that prohibited foreigners from commercial surrogacy; this notification resulted in surrogates moving to Nepal and Kenya during the procedure to evade the legal consequences. The notification was also met with protest. Banning commercial surrogacy and possibly creating the hazard of a surrogacy ‘black market’ is the worst possible scenario for women who wish to be surrogates. The situation will regress to the profit-driven model which focuses on the commodification of wombs. An avenue to earn income instils a sense of autonomy, which is often an unfortunate rarity for the women of India. If regulated with adequate safeguards, commercial surrogacy can prove to be a legitimate source of income for women. Our law makers ought to recognise the ability of surrogacy to emancipate women and usher them towards financial self-reliance. The Bill has been passed by both the houses; thus, its likelihood of becoming an act is highly probable. The act’s survival of judicial scrutiny if challenged however, hangs in the balance.
This piece has been authored by Anoushka Shetty.
Anoushka Shetty is a fifth-year law student pursuing a B.L.S. LL.B. at Government Law College, affiliated with Mumbai University.
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