Author : Spriha Pandey

Expert Speak Young Voices
Published on Dec 21, 2018
The Surrogacy Bill: A much-needed reform that fails the test The Surrogacy (Regulation) Bill, 2016, which was passed by the Lok Sabha through a voice vote on 19 December 2018, leaves out ample ambiguities in the Bill, and also fails to answer several complex questions regarding surrogacy in the country. While the Bill effectively cements the ban on commercial surrogacy, it fails to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child. Surrogacy is a method where intending couples, who do not have a biological child of their own or have a child who is mentally challenged or suffering from life threatening disease, can commission a surrogate mother to carry their child. This arrangement may be commercial or altruistic in nature. Commercial surrogacy involves an agreement, which includes monetary compensation to the surrogate mother along with medical expenses associated with the pregnancy. Altruistic surrogacy focuses on providing no monetary compensation to the surrogate mother. In 2015, the Government of India banned foreigners from having children through surrogate mothers. Since then, surrogacy has been a controversial practice and has been debated in the court on the grounds of morality. The Surrogacy (Regulation) Bill has sought to remove the anomaly caused due to the lack of any legal framework around commercial surrogacy, which led to exploitation of poor women acting as surrogate mother, while legalising the practice of ‘altruistic’ surrogacy. The Bill mandates that the surrogate mother should be a “close relative” of the intended couples with a previous child of her own and should be between 25 to 35 years of age. In altruistic surrogacy, the surrogate mother is supposed to hand over the custody of the child to the couple without any monetary compensation in return, except reasonable medical expenses. The Bill further clarifies that any form of monetary compensation or advertising about the act of surrogacy, is a punishable criminal offense. According to the Bill, the intended parents are supposed to be Indian, heterosexual couple who have been married for at least five years. The Bill clearly excludes surrogacy as an option for people from LGBTQI+ community, single parents or couples living in live-in relationships. Arbitrarily, the Bill completely bars several persons on the basis of their marital status, sexuality and gender identity and orientation from opting for surrogacy. The Bill fails to address whether the close relative or a friend, who is ready to be a potential surrogate mother, has provided her genuine consent or has been forced to agree through any sort of coercion or family pressure. Although the Bill talks about providing medical compensation to the surrogate mother, it fails to notice the complex mental, physical and emotional labour that surrogate mothers undergo during pregnancy and post-partum period of labour. The Bill offers to take charge of the medical expenses, but nowhere mentions about the mental health of the surrogate mother. According to the study by Ragone, which focuses on women who become surrogate mothers by giving the “gift of love” to an infertile couple, 26 percent of potential surrogates had previously had an abortion. It also explains how during the period of surrogate pregnancy, important bonds are established between the mother and her foetus, which further promotes psychological and psysiological bonding. There have been several cases where a surrogate mother is unwilling to give away her biological child. For example, the famous case of Baby M ended up in a long-drawn and ugly legal battle over custody of the child. The pregnancy influences the mental status of the surrogate mother and she continues to live with psychological burden of being away from the gestational child. Banning commercial surrogacy appears to protect women from physical exploitation, but the Bill makes certain generalisations and assumptions about the role of women in the society. The Bill reinforces the traditional idea of a family where women are natural and selfless nurturers. This particular belief has been highlighted and celebrated under the disguise of their altruism. Although the family is the center of fundamental economic exchanges, domestic activities, care giving and child bearing are tasks that are particularly seen as emotional activities bereft of economic contributions. The labour that the surrogate mother has to undergo has been considered as ‘alienated labour’ ignoring all the risks, as aptly surmised by Rosalie Ber: “The question of whether the suffering of a childless woman is greater than that of the gestational surrogate, who abandons her baby, is “solved” when the surrogate mother is depersonalized, and looked upon solely as womb for rent.” The Bill, in this sense, recognises and assumes that women have natural instincts to perform their services as surrogates purely for love. The point of medical compensation is not very clear either in the contract or the so called written consent to be obtained from the surrogate mother and thus leaves ample room for potential exploitation of the surrogate mother. The other important concern in relation to the contract and the written consent is regarding abortion in case the surrogate mother discovers foetal abnormalities or any health abnormalities for either herself or for the foetus during pregnancy. The Bill specifies that permission of appropriate authority is required to terminate the pregnancy during the period of surrogacy. The permission from the authority has to be coordinated with the provisions of the Medical Terminations of Pregnancy (MTP) Act, 1971, which clarifies the grounds for termination of pregnancy. According to the MTP Act, the court only accepts the consent of the pregnant woman for abortion in case of any abnormalities. The intending couple is not allowed to participate and contribute in this decision-making. Involvement of intermediaries during the process of surrogacy means that surrogate mothers normally are shortchanged. Lack of provisions for medical facilities post-birth, dearth of good health centers etc. are basic issues that still remain unresolved. The Bill fails to extend the provision of insurance beyond the period of surrogacy and excludes the possibilities of long-term medical aspects such as post-partum stress disorder, and other physical or mental symptoms. The current situation demands that the physical, mental and economic rights of the women who act as surrogate mothers have to be protected against any physical, emotional and financial implications. The women who act as surrogate mothers have a right to make informed decisions regarding their reproductive autonomy, intrusive technological interventions and right to health and control over their reproduction. Just the removal of the commercial aspects in the current surrogacy arrangements, does not remove the chances of exploitation. In fact, by not even attempting to tackle the complex socio-physiological and socio-psychological issues – besides of course, the moral and ethical questions – of surrogacy, the Bill, in the long-term, is likely to adversely affect the noble practice of adoption by childless married couples.
(Spriha Shukla is a Research Intern at Observer Research Foundation, Mumbai. An MPhil in Women’s Studies, she currently pursuing her PhD at the Tata Institute of Social Sciences)
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