It is 2020; I suppose I can decide what to do with my body? Considering how it is among the fundamental rights that have been made available to me.
Unfortunately, I guess not, because the State continues to deny my bodily autonomy. The ban on commercial surrogacy is yet another regressive attempt to control the reproductive and bodily autonomy of people with reproductive organs. The Surrogacy (Regulation) Bill, 2019 (SRB) bans commercial surrogacy and allows altruistic surrogacy, that is,. surrogacy which involves no monetary compensation to the surrogate mother. The bill was passed by the Lok Sabha and was thereafter referred to a Select Committee (SC), and is yet to be passed by the Rajya Sabha.
Hurried passage of bills without in-depth deliberations has become the norm of our Parliament, as we witnessed as happening with the recently passed controversial agricultural bills. This crucial surrogacy bill translating into an act would be a breach of constitutionally guaranteed rights of equality, personal liberty, and anti-discrimination. Its repercussions would be debilitating and would perpetuate moral conservatism and heternormativity in our society.
Even after the suggestions made by the Committee, the surrogacy bill is riddled with serious flaws. Before we delve into the considerations of the bill, let us understand the history behind surrogacy in India, and how the legislations have evolved.
Research by WHO indicates that 48.5 million couples worldwide are unable to have a child after 5 years. India itself has witnessed a declining fertility rate of around 2.2 (births per woman), due to which surrogacy has become an increasingly popular reproductive choice during the last decade. Commercial surrogacy, informally called ‘rent a womb’ practice was legalised in India in 2002. This led to India becoming the ‘capital of surrogacy’ and associated burgeoning of medical tourism. This was largely due to lower costs and absence of strict legislation and regulation.
Although, it is a means of livelihood for women especially from underprivileged backgrounds, it can lead to more serious problems. These include, but are not limited to, commercialisation, unethical practices, exploitation, abandonment of children, unhygienic facilities, and import of human embryos and gametes. The legislations came in to address these concerns, especially to protect vulnerable surrogate mothers. They evolved from permissive guidelines set out by the Indian Council for Medical Research in 2005 to increasingly restrictive bills.
Subsequently, notifications from Ministry of Home Affairs, sought to exclude prospective parents based on marital status, sexual orientation and citizenship. In line with the 228th Report of the Law Commission which proposed the need to enact a law to regulate commercial surrogacy, the Surrogacy (Regulation) Bill, 2016 was ‘born’. However, it lapsed and was re-introduced in 2019.
However, instead of a robust institutional and regulatory framework to address the core concerns of the surrogate, the surrogacy bill instead turned it into a Commercial Vs Altruistic issue with heteronormative and moralistic undertones.
The surrogacy bill limits surrogacy to “close relatives” which a parliamentary select committee has recommended to be replaced by “any willing woman”. The assumption that altruistic surrogacy will eliminate the exploitative nature of the practice is grossly misplaced as involvement of the family might generate greater complications. The patriarchal setup, stigma of fertility, pressure of producing children could pressurize women in the family to carry the child against their will, thus, being exploited in the process
Further, the draft surrogacy bill erodes women’s bodily autonomy and violates their basic civil and fundamental rights, by restricting their choices based on unfounded moralistic conservatism. Moreover, the Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh upheld ‘the right to reproductive autonomy’ of an individual as a part of their right to privacy. This is inclusive of the right to procreation and parenthood, and the prerogative to decide the mode of parenthood that rests with the concerned individual.
Thus, the surrogacy bill is in clear violation of Article 21 (Right to life and Personal liberty). The surrogacy bill also limits the autonomy of married couples by means of inflexible conditions and requirements of eligibility certificates.
“They call us baby-making machines. But they will not call us that when we bear our husband’s child one after another. For us, there is little difference between the two.”
These words by an unnamed surrogate mother in a hospital in Anand, Gujarat were said when questioned on the morality of surrogacy.
The Parliamentary Standing Committee on the surrogacy bill, 2016 acknowledged the drawbacks of altruistic surrogacy. In its report the Committee noted that the proposal of altruistic surrogacy is more moralistic than scientific; injecting all kinds of value judgments in a paternalistic manner. These suggestions were ignored in the 2019 bill. The latest suggestion by the standing committee to state the intention of surrogacy, whether it is altruistic or economic is arbitrary and unnecessary. Its biasness towards altruistic surrogacy is visible through its recommendations.
Surrogacy may be a better livelihood option, especially for economically underprivileged women. The bill strips away their choices and agency. The bill leads to valorization of free reproductive labor.
It is also to be noted that the SRB allows surrogacy only for childless, legally married heterosexual couples with certain age restrictions. In addition to this, the couple must wait for at least 5 years after exhausting all other options. The standing committee has recommended removing this infertility clause, although it only allows for gestational surrogacy after it has been necessitated. These provisions are deeply exclusionary, discriminatory, and regressive.
The standing commitee has also recommended widening the ambit of eligibility criteria to include women who are widows or divorcees, and couple of Indian origin. However, there persist exclusions based on gender identity, marital status, age, sexuality, and orientation with LGBT community, older couples, unmarried people, single parents, live-in couples etc. being deprived of this opportunity.
The traditional and heteronormative notion of what constitutes a family is being promoted via this clause. The argument of adoption as an alternative option lacks essence, as the choice of surrogacy should be available to all.
Blanket bans do not necessarily always lead to the abolition of the activity, which can be witnessed with examples of sex-work or unregulated abortions. As a result, it may directly lead to creation of unregulated, exploitative underground/black markets. In this scenario, the risks of unsafe medical practices cannot be emphasized enough. Hence, this may result in greater exploitation of women and abandonment of children due to lack of accountability.
The need of the hour is a robust regulatory oversight, which protects the interests and prevents exploitation of the surrogates. This is superior to a blanket ban that deprives their right to livelihood and bodily autonomy. The surrogacy bill only focuses on gestational surrogacy leaving out other forms of assisted reproductive technologies (ARTs). Hence, we need a broader legislation like-Assisted Reproductive Technology (ART) Regulation Bill, 2020– to create a safe and conducive ARTs environment. Surrogacy remains a controversial and complex issue in many countries, however, it is imperative to value surrogates’ reproductive labor, protect their bodily autonomy; paving way to a non-discriminatory access to surrogacy.
The shortcomings of the surrogacy bill need to be aggressively deliberated upon and its provisions need to adhere to constitutionally guaranteed rights, and it should include everybody leaving nobody behind.
The Government seeks – “Minimum Government, Maximum Governance”. Why should bodily choice any different?
And as Ruth Bader Ginsburg once said:
“The state controlling a woman would mean denying her full autonomy and full equality.”
Sasha is an Economics graduate from Ramjas College, Delhi University. She was a LAMP Fellow wherein she was a legislative assistant to a Member of Parliament. Her work included legislative research and analysis of various socio economics issues. She has extensive experience in the social and public policy sector. She has worked with children from underprivileged backgrounds and in the rural hinterlands with different NGOs in various domains of education, gender justice, governance and health. She is a national level tennis player, and a swimmer. She is an avid reader and an occasional poet. Her interests lie in gender studies, mental health, and developmental practices. She seeks to contextualize her localized knowledge to wider problems in different domains. A huge dog lover, she hopes to rescue all of the ailing dogs, and herself in the process. And somewhere, somehow she hopes to make a change. She can be found on Twitter, Facebook, LinkedIn and Instagram.
Featured Image Source: The Guardian