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India’s Surrogacy Bill Is More Complex Than You Think. Here’s Why

Posted: March 13, 2017

Surrogacy is a complex subject, and surrogacy laws are necessary for regulating this, but the new surrogacy bill is problematic in many ways.

Surrogacy is ethically and practically a complex subject fraught with grey areas. Distinguishing between freedom over one’s own body and exploitation of it by another, is not always easy.

There are several laws in various nations, that deny people complete freedom in making decisions over their body. Laws against suicide, assisted suicide and prostitution are such examples. Often the reason for these laws, is not to curb freedom, but to reduce the chances of exploitation. However when such laws are formulated they can be far from ideal, with various politicians pushing their own agendas.

In surrogacy, two parties agree to a mutually beneficial contract, so what is the problem?

When a person makes a contract in desperation, they can be easily exploited. It is difficult to know in advance, all the repercussions of giving up a baby that grows in your womb. How do you put a price on the emotional trauma, before you have any idea what it is going to be like?

Since it it is hard to know, some women, who are desperate to meet short term financial needs, may do this for a much smaller compensation than they deserve.

On the other hand, is it really the government’s place to decide what a woman can or cannot do to for her own survival and for the survival of her children, so long as it does not hurt anyone else? After all there are places in rural India, where women choose to become surrogates for a price of $5000 to $7000, which may be a small amount by western standards, but about 10 years worth of earnings for rural women. If surrogacy laws make it illegal, isn’t it likely that desperate couples and desperate women will get into illegal contracts where the surrogate mothers are more likely to be exploited?

Gita Aravamudan, the author of Baby Makers, takes a practical view of the situation. She says: Exploitation can take place at several levels. The exploitation issues of surrogates per se can be addressed by ensuring that the women who hire out their wombs are covered by legally binding contracts which ensure they get properly paid for their labour, they get health insurance to take care of emergencies, and are given proper medical care and other coverage. This can be done only if commercial surrogacy is recognised as a legitimate job which women take up out of choice.”

Gita also believes that, the new bill banning commercial surrogacy in India, in it’s present form, will indeed create a market for illegal surrogacy.

Some information about the latest surrogacy bill

The latest bill bans commercial surrogacy and allows only altruistic surrogacy, for couples, married for over 5 years, and having proven infertility problems, using a married close relative with a previous successful pregnancy for a surrogate. Surrogacy can only be used if the couple has never had a child before. Indian surrogates can be used by Indians alone.

Commercial v/s altruistic surrogacy

Surrogacy when done for a fee is called commercial surrogacy. Some women also undertake surrogacy without a fee, except medical bills, to help friends or relatives. Such a surrogacy is called an altruistic surrogacy. A new bill in India plans to ban all commercial surrogacy, but will allow altruistic surrogacy using extended family.

Banning commercial surrogacy takes away a woman’s choice to undertake surrogacy for a fee. In theory it should reduce the probability of exploitation. However in Indian society, many women are dominated by other family members and can be coerced in to undertaking an altruistic surrogacy, for a sister-in-law, for example.

The recent bill requires surrogates to be close relatives, but the term close relative is not clearly defined. Does this put an oppressed wife and daughter-in-law at greater risk for coercion in to surrogacy?

Gita believes that “the new surrogacy bill is ill thought out, and that, forced surrogacy, emotional and other forms or family blackmail, as well as a creating a confusing atmosphere within its own home for the child, will be some of its consequences.” She adds, “the moment commercial surrogacy is banned, the surrogate has no legal means to fight exploitation.”

Ethical grey areas

Ethical questions arise in any surrogacy, like; can the intended parents force the surrogate, against her will, to abort, in case of a child with high probability of down syndrome or some other debilitating genetic disorder? The abortion procedure is performed on the surrogate, but the intended parents will have to deal with bringing up the child, so whose call should it be? How much of a risk to a surrogate’s health makes abortion acceptable?

In case of commercial surrogacy, how does compensation work in case of a late abortion to save the surrogate’s life, given that the surrogate has endured several months of pregnancy? As for altruistic surrogacy, the nature of contracts for is not specified by the surrogacy bill.

The new bill requires the surrogate to be a close relative of the intended parents, making confidentiality practically impossible and creating many possible emotional conflicts with in the family. On the other hand, a woman may appreciate having easy access to her surrogate child and watch him or her grow up.

Discrimination

There are many complexities involved in deciding if surrogacy should be legal, and if it is legal, if it should be restricted to the altruistic kind. But what puzzles me is why the nature and choices of the intended parents is of such great concern, so long as they are law abiding citizens. How should it matter if they are single, widowed, divorced or gay? Yet this is one of the aspects of surrogacy law that the latest bill has chosen to focus on. Isn’t this a sufficiently complicated subject without bringing in unnecessary discriminatory clauses?

Gita makes an interesting point about the nature of restrictions. She says: Rather than focus on sexuality or marital status, there is a need to look at age, criminal records, medical health and other such pertinent information which will directly impact the life of the child.”

What the surrogacy bill glosses over

Gita points out that there are are many important issues concerning surrogacy that have been completely overlooked by the new bill.

She says: There is an immediate need to have detailed regulation, which addresses the various issues related to assisted reproductive technology (ART), from a medical and scientific perspective. By focusing only on exploitation of surrogates, the surrogacy bill conveniently pushes everything else under the carpet.

Surrogacy is not a stand alone procedure. It is the culmination of painful and expensive infertility treatment and is only required when the woman is unable to carry the foetus in her own womb. Not all infertile couples need to hire a surrogate. Looking at the need for regulating ART clinics, eliminating agents who sometimes cheat and exploit both couples in need of a surrogate, as well as the surrogates, and establishing proper protocols, is the need of the hour.”

Future of the Surrogacy Bill

Finally, on February 5th 2020, a Rajya Sabha committee recommended that a single Indian woman, a widow or a divorcee, is allowed to seek surrogacy as long as they are between the ages of  25 and 45. The bill, without question, does address some of the issues that poor and underprivileged women face and with this, they are more protected by the law. 

The Surrogacy Regulation Bill of 2019 called for a complete ban on commercial surrogacy by either foreign or Indian couples. It still allowed altruistic surrogacies for close relatives, provided the couple in question is legally married.

Even then, the bill only includes a man and a woman who have been married for five years and specifically certified by a District Medical Board as infertile. Yet again we see the heteronormativity of the bill as it turns away from homosexual couples. 

The many legal loopholes in the bill, however, call for a review. As the surrogate mother is a close blood relative providing her own eggs, this may result in generic defects in the child. Women still continue to be dominated by patriarchal norms in the household and may even be coerced into giving their consent for the procedure. The ambiguity in the law is also made more pronounced as underground export-import activities continue and there is a ban on the storage of embryos and gametes for surgery.  

Overall, though the bill is an attempt, it is by no means an altogether sincere or effective one. It continues to compromise the freedoms and rights of women and work off  the basis of India’s entrenched patriarchy. 

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Kanika G, a physicist by training and a mother of 2 girls, started writing to

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