This article has been authored by Lovanshi Arora, a Second-year student at O.P. Jindal Global University, Sonepat.
The perception towards surrogacy lies at the extreme ends: either surrogates as ‘angelic mothers’ who bestow happiness to a family, or someone ‘selling her motherhood’ for money.
Most feminists condemn commercial surrogacy as the commodification of women’s body through medical technology. Whereas, detractors see it as a form of labour and acknowledge women’s service capable of monetary benefits. It is these complexities that make authorities put this practice behind the dark curtain of prohibition i.e., not up on stage for evaluation. India was deemed as a popular hub for surrogacy because of cheap medical facilities, and non-binding legal provisions that were made stricter after the first apex court surrogacy case of Baby Manji in 2010. Surrogacy is a delicate issue which can be practiced in balanced way through regulated body and properly framed laws. But instead of regulating it, Lok Sabha in 2019 passed Surrogacy bill which banned commercial surrogacy, and allowed altruistic model to protect and safeguard the rights of surrogate and the child. In this article, I will delve into the implications of model of surrogacy in proposed bill with respect to the right of surrogate, to examine if the bill really constitutes the potential to implement what it claims and forward my opinion to the viable approach in Indian context.
We see a wide range of gendered marketing in economic sphere. The parallels between voluntary sex-work and surrogacy in the commercial realm makes women who wish to earn a highly stigmatized figure. One needs to note that surrogacy as a process is not under the radar, otherwise surrogacy as a practice would have been banned. It is the societal image of surrogates’ that degenerates when seen through the “Indian” lens of ethical, moral and cultural praxis. There are several services of women which are monetized such as babysitting, voluntary sex work, domestic job of nanny even there are discussion by leaders for example- Kamal Hassan of Makkal Needhi Maiam (People’s Justice Centre) in Tamil Nadu made the pledge to provide wages to housewives in its party’s manifesto. Then a common question arises, if these services can be chosen as an economic choice to prevent financial dependence then why not surrogacy? Where one should draw line between acceptable and unacceptable form of gendered marketing and labour? The probable answer given by legislator to these arguments was in order to avoid the exploitation meted on surrogates in case of commercial surrogacy.
Commercial surrogacy undeniably possesses potential for various forms of exploitation. Before 2015, in unregulated Indian market many women were underpaid, were unknown about the intended parents, were not told about the process that they would be subjected to or were put through risky treatment without their consent. But banning the practice completely instead of regulating it takes away the liberty of women to choose her economic realm.It also turns blind eye to the inevitable black marketing of commercial surrogacy on ground and if operated without oversight it will push vulnerable women further into the situation of physical, mental and economic violation. Moreover , the Supreme Court has held that the right to reproduction forms an integral part of the right to life guaranteed under the Article 21.These reproductive rights of women include the right to carry a baby, give birth and raise children. The state’s action to curtail the reproductive choices of women violates these fundamental constitutional provisions.
The bill completely undermines the significance of remuneration. It was estimated that the money surrogates earned is 10 times more than their annual household income. Women who manages household work are not seen as ‘productive’ or someone contributing to the financial needs of the house thereby, family members disregard her worth and autonomy. They are expected to both work in house as well as earn waged-labour that gives them some sort of control over the decisions undertaken in domestic matters. This depicts how a woman’s monetary contribution in the household directly links to her integrity as a worthy member. Thus , it further reinforces the claim of modifying the model to compensatory form because surrogacy constitutes the potential to become a rational economic choice which the bill takes away.
The bill proposes for altruistic surrogacy strictly with ‘close’ relative’ of the commissioning couple which extremely restricts their options, because people might adopt fourth or fifth child of a family member but surrogacy within the Indian family is completely alien concept. This provision works as counterproductive to the objective of the bill that is to protect the rights of a surrogate because knowing the patriarchal structure of Indian family and also the great significance attached to the family lineage, an upper-class member could coerce possible lower class to become surrogate. The women would be in a detrimental position due to their poor economic condition and the lack of bargaining power allotted to women in the family. This being the case, it robs the women of her free will which violates her right of living with dignity. The consequences of this clause also range to conflict within families keeping in mind that a woman develops unique maternal bond with the baby during the pregnancy and there is real possibility of women not parting with the baby. In terms of her disadvantageous position in family, she would be obligated to part with the baby and suffer immense pain. There have been studies to show that women who are paid for her service as surrogate are more likely to overcome the emotion of attachment with the growing foetus. Therefore it can be summarized, altruistic model of surrogacy put forth by legislators is not free from exploitation.
I would extend my argument of making surrogacy intra- commercial that means sustaining the partial ban on foreign nationals to get treatment of surrogacy from India, as it requires careful and comprehensive legal devices for fair implementation. The risk increases multifold in case of worldwide commercial surrogacy. Cases like Baby Manji Yamada v Union of India and Jan Balaz v Anand Municipality & Others shed light on the arduous legalities of nationality, parentage, and citizenship involved which makes the whole process strenuous for the baby, intended parents, and the surrogate because it requires the country of the intended parents to cooperate with the legalities of the country where baby is born. In Baby Manji, the baby citizenship was put in grey area and parents in Jan Balaz case had to go through 2 years long legal process because Germany’s refusal of parenthood through surrogacy and India disagreement to provide children with visas. This reflect that India should take one step at a time, because it would be impractical to suggest opening commercial surrogacy across borders.
There is little indication that lawmakers considered the inter-sectional aspect of how the law would impact women’ s right to their bodies. The bill does not address anything about the maternity leave for the surrogate which goes completely against the motive of the bill to safeguard surrogate’s interests. Even the parliamentary standing committee on the 2016 surrogacy regulation bill recognized drawbacks of restricting surrogacy exclusively to altruistic cases. In a report on the bill, the committee remarked that the proposed altruistic surrogacy model is based more on moralistic assumption than on any scientific criteria”, and that “all kinds value judgement has been injected into it in a paternalistic manner”. The committee recommended replacing “altruistic” model with “compensated” surrogacy to indicate that range of monetary payments to the surrogate mother should be permitted as reasonable compensation but the standing committee report of 2019 bill did not raise any such demand. Instead, it merely suggested to increase the insurance cover from 16 months to 36 months which would be used to pay the expenses dealing with women’s health post-delivery.
Surrogacy is a contentious subject for many as it exhibits complexities in social, medical, cultural and psychological domains which varies across the globe. Taking the case of India which lay its framework under international law and the constitution can definitely work upon the bill and make it more progressive and viable. Shifting the model to commercial within nation state would empower women economically and will help in destigmatizing the perception for surrogates. With that, it should also be conceded that surrogacy in any part of the world is not without the loopholes, rather than looking at the practice as altruistic v. commercial we must address the need to uphold the rights of the surrogates as core issue. While both models require intense regulations, the feasibility of implementation and linearity with objective should be kept in mind which needs healthy dose of realism in Indian context. The bill takes the easy way of prohibiting the problem, but the real success lies in tackling the problem and regulating it.