Author: Srishti Chawla, Student at Vivekananda Institute of Professional Studies
The Surrogacy (Regulation) Bill, 2020 (from here onwards referred to as Bill) is a controversial piece of legislation which aims to both safeguard surrogate mothers against exploitation and protect children born through surrogacy.
Currently, surrogacy is for most part unregulated, though it was initially brought under the ambit of the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics 2002 draft. It has been practised in India since the 1990s. According to The Washington Post, foreign couples or individuals from developed countries have been flocking to India because of its more affordable surrogacy options. Though the Supreme Court declared that surrogacy was legal, in 2002, , it continues to remain unregulated to a large extent. It has been quite a controversial issue owing to its complex nature and the lack of a just and firm legislation to regulate it
India is a preferred destination for surrogacy. According to an article by INSIDER The factors influencing the rapid increase of this industry in our country are low-cost technology, skilled doctors and easy access to surrogates. A report from THE GUARDIAN reveals that Clinics can make up to £18,000 from commissioning parents. The cost of bringing home a surrogate baby from India is approximately five times less than the sum charged in the US. Moreover, estimates show that more than 25,000 children are being born through surrogacy in India every year. Though this is an industry worth $2 billion, it continues to be a secretive and unregulated sector. Arguably, it is this opacity that puts surrogate mothers under the risk of losing their lives to improper medical practices.
Majority of the surrogates are from low income groups and need a means to earn some income for their family. Their situation is abused by clinics, who offer fancied up packages to intending parents, not revealing what these surrogates have to go through and whether their bodies are even capable of carrying a healthy child or not.
The unregulated industry was to be given a check upon and it started with the banning of commercial surrogacy by foreign homosexual couples and single parents in 2013. Later, In 2015, the government banned surrogacy for foreign nationals outright. Following this the Surrogacy (Regulation) Bill was introduced and passed by the Lok Sabha, proposing surrogacy as option only for heterosexual Indian couples married for at least 5 years with infertility problems to access unpaid surrogacy, the bill never came into force and lapsed.
The bill was reintroduced and passed by Lok Sabha in 2019, but is yet to be passed by the Rajya Sabha and get president’s assent.
The bill, which aims to ban and criminalize commercial surrogacy, was tabled because of the onslaught of the COVID-19 pandemic. However, it is important to recognize that a ban would only allow this industry, which is already worth millions of dollars, to go underground. This would further enable a lack of regulation, and hence, sanction the disempowerment of surrogate mothers. Ukraine, Georgia and Russia are some of the countries which have successfully been able to regulate and carry on altruistic as well as commercial surrogacy and maybe in the same way our country might be able to regulate this subject.
Now only ‘Close Relatives’ can become surrogate mothers and they will not be able to take any money for it because only ethical altruistic surrogacy is allowed. Now the fact that the Bill mentions only close relatives can become mothers, there is a lack of understanding in the kind of patriarchal families that we live in.
The bill automatically excludes single/unmarried people to have kids and refuses the LGBTQ community their rights to form a family. So in short single women, divorced persons, homosexuals, transgender persons have no access to surrogacy. But exceptions have been carved out for widows and divorced women between the age of 35 and 45 to be able to be a single commissioning parent.
It points to a very conservative idea of who is allowed to form a family. It says only a man and a woman can have a child, which is arbitrary and has no logical rationale as to why unwed individuals or homosexual couples are being excluded from the ambit. Even though, currently, we allow single people to adopt. And if we are allowing single people to adopt, why can’t we allow them to use medical technology to have biological children?.
The Supreme Court recognizes live-in relationships; it recognizes children born out of live-in relationships, so why does it not allow surrogacy in these kinds of cases? Why is there discrimination and categorization when it comes to surrogacy?.
Banning will definitely not lead to the goals and objectives of the Bill. The times are changing and with it people find new ways to feed themselves and their families and if surrogacy has been an option for women to be able to provide for their family, then there should be no harm in that. The way we should see it is that the industry needs to be regulated with a strong set of laws that can supervise commercial surrogacy and prove this industry to be a win-win situation for all.
“ India’s surrogate mothers are risking their lives. They urgently need protection”. https://www.theguardian.com/commentisfree/2012/jun/05/india-surrogates-impoverished-die