Surrogacy Regulation Bill ensues controversy over its regressive legislation

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Surrogacy Regulation Bill, 2018 first introduced in 2016, passed in the Lok Sabha last week amidst huge uproar and protests and was sent to Rajya Sabha for its approval. This Bill has drawn widespread criticisms because of its regressive approach towards women and patriarchal notions of family values. The Bill received a lot of heat as people felt it intrudes on people’s rights to privacy, promotes archaic notions of family systems and in general support a regressive attitude towards women and sexual minorities by trying to control their bodies, lives, rights and fates in the name of protecting women from exploitation.

Surrogacy Regulation Bill, 2018

The Surrogacy Regulation Bill, 2018 is full of flaws and has attracted negative attentions from feminist activists, legal practitioners and female health professionals who have all pointed out numerous flaws and questionable ideas that are of regressive nature being aggressively promoted throughout the Bill. The Bill first introduced in 2016 was finally approved by the Lok Sabha amidst continuous opposition from Congress and AIADMK parliamentarians over various other issues.

The main theme revolves around banning commercialisation of surrogacy that results in exploitation of poor and marginalised women. The Bill outlines –

  • A Total ban on commercial surrogacy
  • Promotes altruistic surrogacy and regulation of the whole process
  • Surrogacy which was hitherto not being covered under any specific law was recognised an attempt was made to legalise it
  • Only Indian couples were allowed to use the process of surrogacy and foreign nationals, NRI couples and such others are barred from seeking surrogate mothers from India
  • Married Indian couples with infertility issues detected in either or both of them can seek surrogacy
  • Couples can opt for surrogacy after five years of marriage and failure of becoming parents through the natural process
  • Couples can only go for surrogacy once and are barred from using the same process to become parents again
  • Couples who already have a child are not eligible for surrogacy but can go for adoption
  • The surrogate mother need to be a close relative of the married couple
  • Only hospital expenses of surrogate mothers can be borne by expected parents and no other payments can be made
  • The Bill proposes a national regulatory authority (National Surrogacy Board) and appropriate state regulation mechanism (State Surrogacy Board) to govern and regulate the process of surrogacy
  • Proposal was made to issue guidelines for clinics and hospitals that provide surrogacy services
  • The Bill enumerates the rights of surrogate mothers vis-à-vis the child and only allows one time surrogacy for the person to protect her physical health
  • Provisions are made for legal aid, medical support and other helpful guidance to ensure protection of the surrogate mother

Impact of the proposed Bill

The Bill already is hailed as a regressive one by prominent medical professionals, leading legal luminaries, feminist groups and even individuals whose lives were impacted by this piece of legislation. Anand (Gujarat) considered surrogacy hub of India was specially affected by the proposed new laws. Kajal Parojiya, 32, a mother of two laments: “My husband makes Rs. 5,000 per month. We barely scrape by. This new law will hit us hard.” A first-time surrogate, Varsha Patel, 30, insists: “Exploitation is not the norm but the exception. Every woman here has come for money. Surrogacy helps them in ways only the marginalised understand.” Gursharan Arora, a resident of Chandigarh happily holding her baby exclaims: “Surrogacy helped me become a mother. I am lucky. But how can the government take this away from other women yearning to be moms.”

The Bill also earned  the ire of others because of its regressive nature. Women like Dr. Nayana Patel complained that the proposed Bill “is not in sync with social reality. It requires certification of infertility, but ignores male infertility issues, negates other health complications that inhibit conception not coming under the ambit of infertility. Rather than tackle these larger issues, the bill focuses only on infertility.” Sarojini, the director of Sama, women’s health organisation points out: “Safeguarding the rights of women who act as surrogates in India is much broader than just remuneration for surrogacy. It includes women’s ability to make informed decisions regarding intrusive technological interventions in their bodies, their reproductive autonomy, their right to health, and control over their reproduction.” As experts feel that this piece of legislation will not stop commercial surrogacy but only results in an increase in hidden, underground surrogacy services, thereby making conditions even more unsafe for surrogate mothers.

Even feminist activist Chayanika Shah argues: “If the issue was just about a childless couple getting a child, it would be conducted in a different way. This whole Bill is framed in a way that looks to preserve the ‘purity’ of the family. First of all, the surrogate mother has to be married. Then, she has to necessarily not give any of her biological material, no gametes, to the child, which means her egg cannot be used.” She further claims that the whole issue of protecting the surrogate mother is hogwash as in reality it is done to protect and keep intact the original married unit. “If her body is being exploited because her egg is not being used, we don’t address that, because then they think she won’t give the child away. There’s no control on them if something happens to her. How are they going to compensate her, say, if she gets cancer two years later because of all the drugs and treatment that this kind of surrogacy process involves? It’s reinforcing hetero-patriarchy in so many different ways using technology, and removes every single possibility of [social, biological and political] subversion that surrogacy once presented.”

Some people felt that the Bill is alarming in nature as it directly intrudes on matters of privacy, sexuality and choices of people. The Bill mandates that only “legally married Indian man and woman above the age of 21 years and 18 years respectively” are allowed to opt for surrogacy which does not recognise the rights of parenthood of single parents, gay and queer couples and unmarried, possible live-in couples. Besides the Bill further advocates “a certificate of proven infertility” which is a violation of the couple’s privacy rights and also assumes a redundant moralistic stance.

The 102nd Parliamentary Report of the Standing Committee to the Rajya Sabha in August 2017 stated that the “potential for exploitation is linked to the lack of regulatory oversight and lack of legal protection to the surrogate and can need through adequate legislative norm-setting and robust regulatory oversight.” The report also recognised the flaws in the architecture of this Bill as it reiterated: “Surrogate mothers engaged themselves in surrogacy out of economic necessity. Their other economic options were equally, if not more, exploitative and nowhere close to being as remunerative as surrogacy. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny and endure all hardships of the surrogacy procedure in the pregnancy period [which] is tantamount to another form of exploitation.” The Bill although made a lot of hue and cry an attempt to protect women completely failed to realise that commercial surrogacy being totally banned would result in a different kind of exploitation of women. In the patriarchal society that we live in where women are still stigmatised for failure to give birth to a  child will come under further retribution if this option is out of question. Also, there is the likelihood of women being forced by family members to undergo surrogacy could increase. This will only serve The total people of sexual minorities and results in women being abused and tortured simply because of their inability to get pregnant. As gender and sexuality rights researcher Ajita Banerjie sums up: “in passing Bills like this, and the regressive Transgender Persons Protection Bill, and the Anti-Trafficking Bill 2018, the State is acting like a patriarch, deciding what is good and bad, despite the people being given their rights [to privacy and all that it encompasses] by the Supreme Court recently.”

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