The Union Cabinet, last week, stamped its approval for the introduction of the Surrogacy (Regulation) Bill, 2016. However, what has emerged after almost a decade of consultation over the Bill is disappointing to say the least. The government, instead of working to protect the rights of the surrogate mother, has chosen to play an authoritarian, moralistic role in deciding who can be a parent and who cannot. Instead of making a regulatory framework that would plug the ills that prevail in this field, the government through this Bill has chosen to ban commercial surrogacy altogether. A large set of people who could have benefitted from it has also been left out of the ambit of surrogacy. The Bill needs to go through a standing committee before it is presented in the winter session of the parliament for it to become an Act.
In effect, if this Bill was to be implemented in its present form, it will allow only infertile Indian couples legally married for over five years to choose altruistic surrogacy — when a surrogate is given no financial gain for carrying a child, the only realistic out of pocket expenses are covered by the intended parents — through only a married blood relative as a parenting choice. It effectively bars NRIs, foreigners, unmarried couples, single parent, live-in couples and homosexuals from this choice of parenting. Commercial surrogacy will attract a jail term of at least 10 years and a fine of up to ₹10 lakh.
Commercial surrogacy has been allowed in India since 2002, but largely remained an unregulated area. The growing number of surrogacy clinics, absence of a regulatory framework, and the availability of poor women willing to rent out their wombs led to several people from abroad to seek India as a destination for surrogacy. A 2013 survey showed 68% of surrogate mothers in Delhi and 78% in Mumbai, were housemaids by profession. The need to regulate surrogacy has been in the discussion since 2005 and very rightly so. In 2005, the ICMR had framed guidelines for ART Clinics. As these were mere guidelines with no legal mechanism to enforce them or monitor compliance these guidelines were flouted by most clinics. In 2008, the Supreme Court said in its Baby Manaji Yamada judgment: “This medical procedure (surrogacy) is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions.”
However, it did not elaborate on what makes surrogacy legal. ICMR drafted an ART Bill in 2008 which the 228th Law Commission Report called “a beacon to move forward in the direction of preparing legislation to regulate not only ART clinics, but the rights and obligations of all the parties to a surrogacy including the rights of the surrogate child.”
There have been several instances of alleged exploitation of surrogate mothers that were reported highlighting the need to safeguard their rights, the child’s rights, as well as that of the commissioning parents. None of the draft bills or guidelines since 2005 denied anyone, on the basis of colour, sex, nationality, race the access to surrogacy as a parenting choice. However, in 2012, the Home Ministry due to growing concerns of exploitation, had put a restriction on commercial surrogacy for foreign single parents and gay couples. It had also barred foreign heterosexual couples, married for less than two years from availing of the service.
On the flip side though there are several stories of how women who agreed to rent their womb felt empowered with the income they earned for carrying a pregnancy through. The 2016 Bill by arbitrarily taking away a woman’s right to choose by terming them exploitation is nothing, but over protectionism and interference by the government. Whether commercial surrogacy empowers women or exploits them depends on which side of the debate one is on, the government’s side of a blanket ban or on the side of regulated surrogacy with checks and balances.
The Bill betrays a regressive mindset as well as a discriminatory attitude towards them. As far as the nature of bans in India goes, these bans only end up pushing these activities underground, hidden from the law, but thriving just as equally. The Health Minister has assured that all concerns would be addressed and the government is open to suggestions to strengthen the Bill. What is a sliver of hope is that this Bill will be discussed and debated in both houses of the parliament before it becomes an Act.
The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.