BANNING OF COMMERCIAL SURROGACY IN INDIA: A LACKADAISICAL AND MYOPIC APPROACH.
Updated: Feb 6, 2021
Deesha H. Vyas, IV Year of BLS/LLB, from SVKM's Pravin Gandhi College of Law
“I feel surrogacy is a boon for women who are looking to make ends meet. It is wrong to say that surrogates are exploited. We are not forced to come here and deliver babies. We come here by choice.- Manisha, Surrogate
“In most of these cases, the surrogate mothers are being exploited”- Ranjana
Kumari, director of CSR
The two statements above represent the ongoing debate relating to commercial surrogacy in India. While one part of the society believes that surrogacy would liberalise Indian women from the clutches of financial restrains, the second believes that such liberalisation is actually exploitation of women in need of money, and they do not really have a real choice.
Till 2015, India was a hub for commercial surrogacy. There is no doubt that the women agreeing to be surrogates were exploited and paid meagre amount to go through the process, give birth many times risking their health. Most of the women did not even know the terms of their agreement. However, the reason for exploitation was the legalization of surrogacy without any legislative back-up. There were only guidelines by the Indian Council of Medical Research (ICMR) and National Academy of Medical Science (NAMS) which were not legally enforceable.
However, Surrogacy also comes as a boon for infertile couples and people who cannot have children, especially in India where“The parents construct the child biologically, while the child constructs the parents socially”. Infertility in India is growing rapidly and the institution of family holds great value in India.
And to help the infertile couples in India and stop the exploitation of vulnerable women in India, the Law Commission took a middle ground and suggested that altruistic surrogacy should be permitted and commercial surrogacy should be proscribed.
The Surrogacy Bill (Regulation), 2019 based on the 228th Law Commission Report was passed in the Lok Sabha keeping the above-mentioned problems in mind. The Bill bans commercial surrogacy in India in toto and permits only altruistic surrogacy through a “close relative”.
The Bill is problematic in various aspects, however, this article solely focuses on the aspect of banning commercial surrogacy and does such a change achieve the objectives it sought to?
The article briefly discusses the background of Surrogacy in India, further mentions the legal analysis through limited cases occurred in India and problems that lead to the passing of the Surrogacy (Regulation) Bill, 2019. Finally, the paper analysis the various reasons for banning of commercial surrogacy and concludes that banning of commercial surrogacy is not a coherent approach. The article also provides for certain pragmatic solutions that can help and regulate commercial surrogacy in India.
CONTEXTUAL TIDINGS OF SURROGACY IN INDIA:
The meaning of the word surrogacy is derived from the Latin word “surrogatus” which means substitute. Thus, a Surrogate mother is a women that acts as a substitute for carrying the child of another women.
Surrogacy became legal in India in the year 2002. And soon, commercial gestational surrogacy started blooming in India owing to the fact availability of women ready to be a surrogate mother and economical medical structure which is around $25,000 to $30,000 which is a lot cheaper compared to other countries. The reproductive tourism is estimated to be round $445 million.It started providing a source of livelihood. Conversely, this legalization of surrogacy without any enforceable laws leads to exploitation of surrogate mothers and other legal problems relating to the custody of the child, citizenship etc.
There is a limited jurisprudential and legal analysis in India. There was a need felt for regulation of surrogacy in India when the complex issues of surrogacy were to be interpreted by the courts.
In Baby Manjhi v Union of India, where the commissioning father had to return to Japan due to the expiration of VISA, while the intending mother after their separation did not want the child. The intending father could not obtain the passport due to the missing name of the mother. The Apex court finally allowed the grandmother of the baby to be taken to Japan granting the necessary documents.
In Jan Balaz v Anand Municipality, an issue arose regarding the citizenship of the child. The intending father was a foreign national and the genetic mother was a donor, while the intending mother had no contribution. In the absence of any legislation to the contrary, the court held in this case that the gestational mother should be considered as the natural mother and citizenship to the baby be given on the basis of birth.
Till 2015, Surrogacy was supervised by the guidelines issued by Indian Council of Medical Research (ICMR) and National Academy of Medical Science (NAMS). These guidelines supports “supervision, accreditation and regulation of ART clinics in India”. However, these guidelines were not enforceable.
In 2008, after the Baby Manjhi case, that held that surrogacy procedure is legal in India, however, there is a need to regulate the blooming medical procedure which has an equivalent of an industry in India.
Thereafter, the Law Commission took up the matter suo moto and suggested for altruistic surrogacy to be legal in India. Thereafter, there was an attempt to regulate commercial surrogacy in India by drafting the ART (Regulation) Bill and Rules, 2010. In 2015, Commercial surrogacy was banned and based on the recommendation of the 228th law Commission report, The Surrogacy Bill, 2016 was passed in the Lok Sabha, but later the parliament collapsed. On 5th August, 2019 the bill was passed in the Lok Sabha and was then sent to a select committee for advice. The Bill Prohibits commercial surrogacy in toto and allows altruistic surrogacy.
Surrogacy is a complex issue raising multifarious ethical and moral questions. Some of the major ethical debates surrounding surrogacy are, is it okay to break the natural bond between a mother and a child? Is surrogacy commoditisation of a child? Does surrogacy exploit women in need of money?
This article explicitly explores the issue of commercial surrogacy and delves into the question whether banning of commercial surrogacy is really a pragmatic approach to justify the objectives of the bill and is it a form of exploiting women in need of money?
According to Sec 4(b) (iii) of Bill only ‘close relative’ can be a surrogate mother for the intending couple and widow/single women.
The Surrogacy (Regulation) Bill, 2019 is based on the narrow assumption that all women who choose to be a surrogate mother in exchange for money are exploited. However, whether a choice provided to a person is a real one or not depends on the bargaining power provided to them and on their ability to understand the terms of the agreement.
The Bill completely disregards a women’s choice of being a surrogate mother and her right to livelihood, right to privacy, bodily autonomy and liberty.
In Justice K.S Puttaswamy v Union of India, the SC held that privacy is an integral part of life and liberty, procreation being a facet of privacy cannot be interfered with by the state. Any woman, voluntarily choosing to be a surrogate, is completely within her rights.
Bodily Autonomy is also an integral part of liberty. State cannot interfere with someone’s right to bodily autonomy.
Section 37 of the Bill states that any person acting against the provision of the bill would be liable for criminal offence. This would include women, choosing to be a women choosing to be a surrogate for livelihood.
The reason why the regulation was needed was to curb the abuse and exploitation of women opting to be a surrogate, not to criminalize a vocation that was selected by many women by choice.
Article 19(g) of the Constitution of India provides for the freedom of profession. Women too have right to choose their profession, even if it is choosing to be a surrogate mother.
The Bombay HC recently held that adult women in this country have a right to choose their vocation by consent, and a person cannot be held liable for their liberty to choose a profession
Some critics argue that even if a women is agreeing to be a surrogate mother out of her choice, it isn't a real choice and is just a consequence of her financial needs. Well, if the above argument is acknowledged, then all forms of labour should be proscribed. Labourers in various industry are exploited every day because of their need for money, nevertheless the same work is not sought to be illegal but rather regularized through different legislations and rules.
The Bill only allows altruistic surrogacy through a “close relative”. The provision does not take into account the pressures of family on women in India, which may force and exploit women within the family to carry the child for the intending parents against her wishes.
Commercial surrogacy is also condemned because it is believed that it leads to commoditization of a women’s body and undermines their human dignity. The researcher fails to understand how the aspect of money demoralizes the same act which, if done altruistically, is considered a godsend.
So, if a relative is forced to be a surrogate mother by her family, that will not undermine the dignity of women and a women who consents to be a surrogate mother in exchange for money will lose her dignity?
Surrogacy provides a source of livelihood, which in turn gives dignity to women in society. Living merely does include surviving but leading a life of dignity and dignity is determined by gauging living conditions of a person in society. Dignity is an important facet of life. If that dignity is provided in exchange of money for a service, where infertile couples and people who cannot procreate are benefited, then is the act so demoralizing? The rationale behind commercial surrogacy can be as simple as a workman being paid for his labour.
Poverty is a structural reality in India, which leads to the growth of Surrogacy in India. Banning Commercial Surrogacy will not help women who are stuck in this structural reality from being exploited, it would rather push the market for surrogacy underground, leading to greater exploitation and abuse with no legal recourse for women.
The Surrogacy (Regulation) Bill, 2019 does not take into account the potential difficulties that would be faced by the intending parents through altruistic surrogacy. Firstly, it can be difficult to find a ‘close relative’, who is willing to gestate the child for the intending parents, particularly when the concept of nuclear families is gaining importance in India.
Further, it also does not take into account the stigma attached to infertility in India, and rights of the intending parents to keep the procedure private. In Rajagopal v State of T.N, it was held by the Apex Court that right to privacy under Article 21 of the constitution of India, “encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”
In B.K Parthasarathi v Govt. of A.P, it was held that people have right of reproductive autonomy, and the same right provides as a legal backup for allowing the procedure of surrogacy in India. However, if the intending parents are not able to find a person, voluntarily, how are their rights protected?
The Surrogacy (Regulation) Bill, 2019 was drafted keeping in mind two main objectives:
To curb exploitation of surrogate mothers
To help an infertile couple and people who cannot procreate naturally to have their progeny.
However, it fails to fulfil both the objectives, as banning of commercial surrogacy is not going to either stop the exploitation of surrogate mothers nor is going to provide relief to the infertile people to have a child. Commercial Surrogacy can provide for a win-win situation in India through more effective ways of incorporation of checks and balances in the framework.
And for the same purpose, the researcher suggests these solutions that can facilitate and regulate commercial surrogacy in India.
Section 33 of The Surrogacy Bill, 2019 provides for the appointment of appropriate authorities. The same authorities can review the terms of each commercial surrogacy agreements and even alter such terms that seem unfair for either parties to the contract.
All the terms of the contract should be elucidated to the women opting to be a surrogate by the registered clinics as well as by the appropriate authorities appointed under the legislation before approving the contract.
Certain terms involving custody of child, determination of natural mother of the child, etc. of the Commercial Surrogacy agreements should be standardised.
Compulsory counselling should be provided to the gestational mother by the registered clinics.
The exploitation of the surrogate mother occurs because of unequal bargaining power that exists and their ability to not understand the terms of the contract properly due to the lack of education. This should have been kept in mind by the law makers while drafting the legislation for surrogacy. The Bill lacks foresight, is parochial in nature and is a lazy attempt to regulate surrogacy. The researcher recommends permitting both Commercial and Altruistic surrogacy in India, and legislation should emphasis on criminalizing only exploitation, abuse and misuse of the medical procedure of surrogacy.