A Critical Analysis Of The Surrogacy Regulation Bill 2016

The recent proposed draft Surrogacy Regulation Bill 2016, passed by the Health Ministry, was cleared by the Union Cabinet on the 24th of August 2016; and is set to be introduced in the Parliament soon. Within a span of one week the draft bill received a severe backlash, being cited as discriminating and draconian. Although the Health minister JP Nadda stated that the bill was still open to improvement, he also said that clauses relating to the “exploitation of women and abandonment of surrogate children” would not be compromised on.

History

When India legalized commercial surrogacy in 2002, it slowly gave rise to a booming industry of foreign surrogacy requirements and fertility tourism, such so much that commercial surrogacy was banned in 2015. The question of foreign surrogacy became especially relevant after the case of Baby Manji Yamada, i.e., Baby Manji Yamada vs Union Of India & Anr on 29 September, 2008. In 2007, a certain Dr. Patel working at the Akanksha Infertility Clinic, arranged for Japanese couple Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Pritiben was impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg. However, in the months to come, Yamada and his wife filed for divorce. None of the Indian laws covered whose child the baby (Manji) was: the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in court that Dr. Patel was running a child trafficking racket by abusing the lack of surrogacy laws, and gaining easy money by enabling surrogacy. Although the case was resolved and Baby Manji was given to her grandmother Emiko, this, as well as the booming surrogacy industry, the easy abandonment of children, and the exploitation of women who were forced to become surrogates many times in order to sustain their family; led to the necessity of this bill.

Important Features of the Bill

1.  Surrogacy will not be allowed for –

1. Homosexual couples
2. Single parents
3. Couples in live-in relationships
4. Foreigners
5. Couples with children
6. Attempts at commercial surrogacy

2. Couple must be married for atleast 5 years.
3. Either one of couple must have proven infertility.
4. Only Indian citizens; NRIs are also not included
5. Age of couple: 23-50 for females and 26-55 for males.
6. Women can be surrogates only once and a married couple can only have one surrogate child.
7. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation.
8. Egg donation is banned.

Critical Analysis of The Bill

Although the bill was made and passed with the intention of preventing this exploitation, some of the clauses had both the medical community and the general public outraged. For one, the necessity of only a relative being a surrogate mother. This limits the possibility of surrogacy to a very large extent, especially since most times, surrogacy becomes the very last option a couple chooses. Even though adoption is always another choice, the adoption process is long and tedious. One also needs to keep in mind, the stigma attached to adoption and the desire of ‘true’ heir (read: male) in Indian societies. Even if the state wanted to curb surrogacy in order to facilitate adoption, in order to stop the privileging of biological children; there needs to be a streamlining of adoption procedures. The idea of “altruistic surrogacy” expressed in the Bill, as has been reported, greatly limits both potential surrogate mothers as well as couples wanting children: since women can become surrogates only once, and since couples who cannot find willing relatives have only one way out – adoption (In other countries altruistic surrogacy is allowed but is not limited to relatives, and one-time pregnancy).

Additionally, limiting a woman’s surrogacy choice to only one time is in a large way limiting the income of those who survive on this business. Again, it comes down to the issue of consent. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. And this too, is a legitimate issue. Just as in the case of sex work, when a woman is coerced into the business because she has no choice, and because she desperately needs the financial resources, it does not mean that she has fully consented to the job. It means that she has not been provided, or is not able to find, alternate employment to sustain herself. However, if she is consenting and is being paid the proper amount, then this should not be an issue at all. In certain European countries, sex work is fully regulated and sex workers have full constitutional rights, unlike in India. This is very different from agreeing to go into sex work for lack of any other options. Similarly, surrogacy laws should be set out in such a way that there is full consent of the woman in question. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely.

Additionally, egg donations are also banned, perhaps in order to curb child trafficking and illegal surrogacy racket. However, again a blanket ban will not help in this situation. Policies need to be structured and laws need to be implemented in such a way that the issue is resolved without censoring the entire industry itself.

One of the most contentious points of the bill is its blatant ban on surrogacy rights of homosexual couples. This is the first time that the government’s transparent homophobia has come out in the open. Sushma Swaraj very clearly stated that surrogacy for homosexuals is against “Indian ethos”, although homosexuality has been constantly mentioned in various Indian texts. Now, even though this ban could be construed as a mere following of the law (Section 377 against “unnatural” intercourse), this would only make sense if heterosexual couples also violating the section were denied surrogacy rights. Since there is no way to conclusively find out, this is obviously a huge denial of justice to the queer community. Furthermore, since according to marriage laws only heterosexual couples are allowed to get married; the explicit stating of the ban of surrogacy to homosexual couples means two very saddening things: one, since this is the first time there has been an explicit stating of “homosexuality”, this only reveals that the government is not even open to the idea; and two, the government is almost stating that the community might as well cease to exist in the former’s eyes, since the latter have almost no rights with regard to their sexuality.

However, sometimes we are quick to criticize policies without understanding the true extent of the situation. The bill is extremely necessary in certain places in India; for example, Gujarat, where ‘baby farms’ exist, i.e. underprivileged women are rounded up in scores and given out as surrogates to potential parents. Here there is a paradox which the government needs to tackle: women are being exploited as baby-carriers, but this is a source of income; and if this ‘exploitation’ stops, then how will they survive? In this industry middlemen play a large role and take huge slices of the amounts paid by the parents, and only about 25% ends up with the actual surrogate mothers. And now although the bill will greatly benefit these women, where will they go for wages?

Apart from this one glitch however, the bill does seem to do more harm than good. Although formulated to curb the exploitation of women and trafficking of children; again, it exhibits the general policy of a state banning or censoring an activity almost completely, instead of looking at ways to use laws to regulate and improve the situation. Additionally, while most countries, especially in Europe, only allow altruistic surrogacy, surrogate mothers are not limited to relatives, and medical expenses are covered. It can be said that although India has not banned surrogacy completely (like Germany, France and Italy), the laws need to be re-looked so that they actually benefit surrogate mothers, prospective parents, and children born from surrogacy.

Slowly but steadily, the government is proving true what was left unsaid all this while: homophobia, discrimination towards non-heteronormative relationships, and a paternalistic enforcement of cultural norms. The bill exhibits a lack of understanding of agency which ought to be given to a woman; that a woman should be able to make decisions when the question is with regard to her body. There is no need for the State to be the Big Brother.

Disclaimer: This article is based purely on news articles and snippets online, since the actual bill has not been released to the public at the time of the publication of this article.