Missing the Point on Surrogacy

The recent Surrogacy Bill passed by the Lok Sabha puts moralistic posturing ahead of the rights of the individuals concerned.

A few weeks ago, the Lok Sabha passed the The Surrogacy (Regulation) Bill, 2018, which came soon after the Transgender Bill and Trafficking Bill. It underscored how the government cares more about pushing its moralistic agenda than the rights and agency of individuals.

The bill, which was first introduced in 2016, is set to shake up the more-than-$445-million surrogacy industry in the country by:

  1. Limiting surrogacy to married couples.
  2. Completely shutting down commercial surrogacy in the country, and mandating that surrogacy be ‘altruistic’, meaning that a surrogate mother needs to be closely related to the couple, and that she cannot be paid for her services. What’s more, she has to be a married woman herself.

The present bill is in stark disregard to the report of the Parliamentary Standing Committee On Health And Family Welfare, which this bill was referred to, and which in its August 2017 Report had trashed the proposal to ban commercial surrogacy. The committee also questioned limiting surrogacy to married couples and not to single parents or persons in live-in relations.

The Supreme Court, on September 6, 2018, struck down section 377 of the IPC ,which penalised “unnatural carnal intercourse” and was largely invoked against homosexuals. That judgement was the first step towards securing civil and political rights of homosexual couples.  The social, cultural and economic rights were set to follow, but this bill makes that hard, as homosexual couples will now have to fight an uphill battle to get their union recognised as a marriage before opting for surrogacy under the new bill. There is presently no law or instance of any homosexual couple getting the status of married couple. While it is possible for someone to undertake a religious ceremony associated with marriage, or apply for a marriage under the Special Marriage Act, there is no instance so far of such a union being recognised by the registering authorities.

While the homophobic nature of the bill was not before the committee, the committee deliberated on the issue of commercial surrogacy. The committee, in fact, called in various surrogate mothers to depose before it, and observed that “these women engaged themselves in surrogacy out of economic necessity and saw surrogacy as a means of economically uplifting their families.” Further, it was observed that “their other economic options were equally, if not more, exploitative and nowhere close to being as remunerative as surrogacy … that economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner.”

The bill brings about a paradoxical situation in which women are allowed to face the burdens and risks of surrogacy, but only as long as they don’t get paid for it. The committee observed:

Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary… Pregnancy is not a one minute job but a labour of nine months with far reaching implications regarding her health, her time and her family. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny.

The Lok Sabha has refused to listen to the reason emanating from its own Parliamentary Committee, but there is no mention of what the Lok Sabha has in fact relied upon. The committee remarked: “The altruistic surrogacy model as proposed in the Bill is based more on moralistic assumptions than on any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner”

The Surrogacy Bill is motivated more from a viewpoint of commercial surrogacy being immoral than from any real concern for the surrogate. No reason is provided why only married couples are being allowed to enter into surrogacy, while the same benefit is being denied to same-sex couples or single persons, who may otherwise be in a position to convince a relative to act as their surrogate, apart from a regressive and moralistic understanding that only married heterosexual couples are entitled to have biological children.

Surrogacy in India has the potential for empowering the women involved if only the government recognises it as labour and helps protects their rights.