The Sanskaari Surrogacy (Regulations) Bill Privileges Some Parents Over Others

Posted: August 12, 2019

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The Lok Sabha recently passed the Surrogacy (Regulation) Bill 2019 that allows only ‘ethical altruistic surrogacy’ and only to some kinds of parents. We examine its merits and demerits here. 

For a long time the ‘Surrogacy bill’ has been a controversial subject. There has been a constant debate going on around whether the bill protects the rights of women or if it discriminates against a set of people and their opportunity to have a child.

Last Tuesday, the Lok Sabha passed the Surrogacy (Regulation) Bill. The Bill defines surrogacy as a practice in which a woman gives birth with the intention of ‘handing over’ the child to an intending couple after its birth.

What does the bill do?

The Surrogacy (Regulation) Bill bans ‘commercial surrogacy’ while allowing only ‘ethical altruistic surrogacy’. Commercial surrogacy involves selling, buying, or trading services with the surrogate, by way of monetary incentive or remuneration in cash or kind.

In contrast, altruistic surrogacy involves no provision of monetary remuneration or incentive. The only thing the surrogate mother receives is  medical expenses and 16 months insurance coverage. Now ‘ethical’ altruistic surrogacy is what the bill deals with.

Provisions for the couple

Under this bill there are certain restrictions as to who can opt for surrogacy. Only Indian couples (and foreigners) or PIOs [persons of Indian origin]), who have been married for at least five years will be allowed to opt for surrogacy.

Apart from that, the women opting for surrogacy should be within the age group of 23-50 while the men should be within 26 and 55. The couple shouldn’t have any other surviving children either by biological means or by adoption or a previous surrogacy. They also need to submit proof of infertility.

Provisions for the surrogate mother

When it comes to the women who want to be a surrogate there are some provisions for that too. The women who want to be surrogates will be restricted to having only one surrogacy. They must be aged between 25-35 years and have to be a close relative of the couple.

Other than this, the bill also prohibits the sale and purchase of human embryos and gametes.

Is the Bill a good idea?

“According to rough estimates, there are 2,000-3,000 surrogacy clinics running illegally in India and a few thousand foreign couples resort to surrogacy practice within India. The whole issue is thoroughly unregulated. There have been reports concerning unethical practices, abandonment of children born out of surrogacy and exploitation of surrogate mothers,” said Union Health Minister Dr Harsh Vardhan during the discussion of the bill.

It isn’t a hidden fact that for the past few years, India has become the ‘hot spot’ for foreigners seeking surrogate mothers. There have been many reports of unethical practices, exploitation of surrogate mothers and abandoning children born out of surrogacy.

There is also a huge racket involving intermediaries importing human embryos and gametes. These concerns make this bill seem like a good idea.

Clauses such as directing the couple to not ‘abandon the child, born out of a surrogacy procedure, whether within India or outside, for any reason whatsoever, including but not restricted to, any genetic defect, birth defect, any other medical condition, the defects developing subsequently, sex of the child or conception of more than one baby and the like’ make the bill an important need of the hour and a really positive decision.

Yet…‘Sanskaari’ and regressive?

It is true that the women who opt for surrogacy are from the poorer, marginalised sections of society. They are the ones who, because of their need for money, are exploited by the hospitals and clients.

But the questions that arise here are whether this bill will actually be able to do what it intends to do and if the bill is fair while trying to protect the rights of some while excluding those of many other couples?

The Bill disallows single, divorced or widowed people, unmarried couples and non-heterosexual couples from pursuing surrogacy. This is discriminatory to their rights. There is also the issue of how the government is dictating the moral standards for people – in terms of who is seen as a potentially good parent and who is not.

Why the criminalisation of choice?

Noted lawyer Karuna Nundy in her tweet said,

She raised the important question of how this idea of ‘natural birth’ is being imposed. We can’t neglect the fact that for many women surrogacy is a way to feed their families and lead a better life. The surrogacy bill will bar several women from this option without providing any other alternative. Also, knowing the patriarchal mindset of the country, there are chances that many daughters-in-law will be forced to become surrogates for other relatives, since the bill enjoins surrogates to be close relatives.

This entire issue also raises the question of why are we banning commercial surrogacy rather than regulating it.

There is no doubt that the bill has good intentions behind it but there is also the fact that the way forward for the bill to achieve these ideas looks very hazy because of all the conditions posed. The good intentions are looking as if they are trying to be moral police dictating to people as to how they should have children.

With that, this bill also jeopardises the reproductive autonomy of single parents, live-in partners and the LGBTQ+ community. Banning something can result in underground means to fulfil the needs. There is no doubt that commercial surrogacy leads to exploitation, but exploitation also takes place because of the unequal balance of power between the surrogate mother and the surrogacy clinics or clients.

Rather, this issue should have been addressed with a strong regulatory mechanism that introduces transparency and curbs exploitation by providing fair work and pay for surrogate mothers.

Picture credits: Pexels 

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