This article has been authored by Arunav Bhattacharjya who is a third-year law student studying at the National Law University and Judicial Academy Assam.
The idea of reproduction is mainly seen as the primary responsibility of women, and this has led to stigmatization of infertility in the India. It is a known fact that every woman values the experience of the phase of motherhood in their life and being able to give birth to a newborn child. Unfortunately, due to certain underlying biological factors and physiological conditions, there are a few women who have less chances or have difficulties in giving birth to their own child. The deep psychological and emotional longing to become parents and to experience the delights of parenthood leads them to search for alternative options like Artificial Reproductive Technology (ART), In-Vitro Fertilization (IVF), and Intra-Uterine Injections (IUI). For a few, the method of surrogacy presents itself as a standout amongst the most sensible or feasible alternatives.
Commercial Surrogacy and its legal position in India
The speeding up of such birth facilitating technologies into a fertility industry has given a new hope to eradicate the social stigma associated with infertility and surrogacy in a country like India. The clinics play a facilitating role in this regard. However, the practice of commercial surrogacy has caused some serious concerns in the modern-day era due to the various medico-legal and ethical complexities involved in the process.
Having legalized commercial surrogacy in 2002, India witnessed a boom in the industry of foreign surrogacy requirements and fertility tourism slowly and steadily, so much to the extent that commercial surrogacy for foreign parents was banned in 2015. India was one of the most favored destinations for infertile couples who were in search for reliable and low-cost treatment for their infertility and as a result, the whole branch of medical tourism used to thrive under such surrogacy practices. However, the Central Government introduced The Surrogacy (Regulation) Bill in 2016, and again in 2019 in the Parliament. The Bill proposed to impose a blanket ban on commercial surrogacy in India and address several other issues accruing to surrogacy. After failing to introduce it in the Rajya Sabha, the Bill was sent for review to a Select Committee by the Rajya Sabha and was due to be brought up in the Winter session of the Parliament. The draft Bill failed to adequately address the issues like that of “close relative”, authority of the National Surrogacy Board, ban on commercial surrogacy to protect the reproductive rights of a surrogate woman and meeting the changing global standards on surrogacy at length, and was more or less an exact replica of the one that was introduced in 2016. Keeping in mind the existing undefined terms in the Bill, and other relevant clauses, the Select Committee of the Rajya Sabha released a detailed report suggesting the incorporation of changes in the Bill.
The Select Committee of the Rajya Sabha presented the report on the Surrogacy (Regulation) Bill 2019 on 5th of February 2020. One of the major highlight of the report presented by the 23 member committee was amending the clause that the surrogate mother, now, need not have to be ‘close relative’ of the intending couple. This change was the most needed change as otherwise, it would have been a difficult task for finding a close relative who would be willing to be a surrogate mother. The report also suggested the deletion of the five-year time limit imposed on the intending couple before seeking surrogacy method and insisted on the deletion of the definition of “infertility” as “the inability to conceive after five years of unprotected intercourse” on grounds that it was too long a period for a couple to wait for a child. As a general recommendation, the Committee suggested that the Assisted Reproductive Technology Regulation Bill, 2020, which is awaiting Cabinet approval, should be taken up before the Surrogacy (Regulation) Bill, as the ART Bill principally deals with technical, scientific and medical aspects of surrogacy. The Union Cabinet approved the Surrogacy (Regulation) Bill, 2020 in February, incorporating the changes recommended by the Select Committee.
Questioning the Indian Ethos
Even though India has legalized the practice of surrogacy, there is still a question that whether such legislation conforms to the norms set by the Indian culture that is the notion that the womb of a woman is to regarded as pristine, due to which there are various social stigmas and ostracism which are faced by surrogate mothers. Women belonging from a poor background are often persuaded in these agreements for earning quick money. They are kept aside from their immediate society to shield them and to fend off any social stigma of being outcast by their community. Indian laws do not provide any provision of insurance or post-pregnancy medical and psychiatric support. In a country like India having a socially conservative culture, this is enough to cause disdainful ‘ridicule’ and ‘remarks on their character’. In India, surrogacy is often associated with paid sex-work and this ‘comparison of surrogacy with prostitution’ displays a certain mindset of the people who associate dishonor to the surrogate women. This was done because of the sole reason that they want to keep pregnancy a secret because in India ‘pregnancy’ is acceptable only within marriage and bearing a child for economic sustenance is generally seen as ‘baby-selling’ or ‘womb-renting’.
Human Rights in Surrogacy Arrangements
There are differing opinions of people across the world regarding the ascription of human rights in the context of surrogacy. While many people treat surrogacy as a progressive practice, there are certain sections of the society who considers the practice as a violation of basic human rights and the reproductive autonomy of the woman. ‘Reproductive rights of a woman’ is a subject which is very new to international laws.
The Universal Declaration of Human Rights (1948), the International Covenant on Social Economic and Cultural Rights (1976), Convention on Elimination of All Forms of Discrimination against Women (1979) and Convention on Rights of Child (1990) does not delve into the issues of surrogacy but they do address some of the pivotal rights involved in the surrogacy arrangements ranging from Right to Health, Right to Support, Right to have a family and to know about one’s origins. The first document which was approved regarding this question was in the Tehran Conference on Human Rights, 1968. At this very conference, it was decided that a person is free to access all these rights by his own will and thinking and only he will be responsible for all the consequences. The reproductive rights granted included all the rights of an individual to have the freedom of their choice, to decide freely about the place and the timing to have the children, and to therefore attain all the medical benefits and rights. Surrogate mothers are not given adequate protection by international instruments but rather it is achieved through contractual provisions of the agreement. This involves paid expenses for medical check-ups during and post-pregnancy, health insurance, prenatal care during and post-pregnancy.
Right To Life And Health vis-a-vis Surrogacy
The surrogate mother acts as a health care worker during the course of the process who provides services to the prospective couple to subdue their infertility problems. During the whole process, the surrogate mother has to go through many medical procedures and treatments. Hence, the surrogate mother possesses the right to know about the medical procedures which are being applied to her and information about its mental and physical effects as the process can be a psychologically draining task. All these issues are directly related to the surrogate mother’s Right to Health and Reproductive Rights of Women, but there is lack of protection given by law in both the national and international context. The right of a child to get to know the parenthood and the right to know the family may be violated in the cases of surrogacy arrangements and this may result into a complex family. People who carry along a negative view on surrogacy maintain that the surrogacy method violates the basic human rights of the individual i.e., it leads to the exploitation of both the child and the surrogate mother. They maintain the belief that this practice involves profit-minded people who in turn exploit the surrogate mother and thus put her in a dangerous position both physically and psychologically.
Surrogacy, therefore, tends to compromise the self-worth of the child as it makes the child consideration for a contract ‘a commodity’ in lieu of the money. It also compromises the dignity of women, the surrogate mother, even if her agreement to the contract is voluntary in nature, by simply treating her as a gestational oven. It is noteworthy that there are numerous instances of violation of the human rights of the surrogate women in different stages of her pregnancy (beginning from the moment she gives her consent or is coerced) and the child born out of the arrangements in the surrogacy. Successive initiatives taken by the Indian Government have failed so far in adequately addressing the issues relating to the rights of the surrogate mother and regulating the practice of surrogacy. However, the Surrogacy (Regulation) Bill 2020, has proven to be ambitious enough in addressing the technical and medical aspects of surrogacy, although only time would be a judge in assessing how effective the Bill has been to address the reproductive rights of the surrogate mother and safeguarding her right to life and health.