The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022. The Act aims to prohibit commercial surrogacy and allows for altruistic surrogacy. In commercial surrogacy, the surrogate mother is compensated for her services beyond reimbursement for her medical expenses. The arrangement of compensation in an unequal society could potentially pave way for exploitation of surrogate mothers and the intending parents. In altruistic surrogacy, the surrogate mother doesn’t receive any monetary compensation other than the medical expenses and insurance during the pregnancy.
Commercial surrogacy was legalized in India back in 2002. Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges, including exploitation, unhygienic living conditions, and unfair treatment. Thus, the law is a welcome move in the right direction; however, banning commercial surrogacy has created its own set of challenges.
The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women’s autonomy to make their own reproductive decisions and right to parenthood. One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.
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The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution. The altruistic surrogacy model expects the women to go through the physical and emotional pain and labor of giving birth to a child only out of compassion which is far removed from the existing reality. Having such unrealistic expectations reinforces the patriarchal attitude of the society and controlling the autonomy of people with reproductive organs. Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women to willingly surrogate. Overall, this step indirectly denies children to the couples choosing to embrace parenthood.
Further, there are multiple disadvantages of altruistic surrogacy. Having a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth. Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
In an altruistic surrogacy, there is no third-party involvement. A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process. Overall, a third party helps both the intended couple and the surrogate mother navigate through the complex process, which may not be possible in the case of altruistic surrogacy.
Next, the Bill outlines the eligibility criteria for couples intending to opt for surrogacy. The eligible couple should have a ‘certificate of eligibility ‘ and ‘certificate of essentiality’ issued by the authorities in charge. Further, the individuals wishing to be parents via surrogacy include the additional criteria as listed below:
- Heterosexual couple (each of the opposite gender) with a man aged 26 to 55 years and women aged 25 to 50 years.
- The couple should be married for a minimum of five years.
- Should have no other children, including biological, adopted, or surrogated. However, the Act waives off this condition for couples who have children with (a) physical/mental disability (b) life-threatening disorder.
The Act further requires a waiting period of five years (from the date of marriage) before issuing a certificate of infertility to the couple. This clause directly curtails the couples’ freedom to start a family earlier.
Additionally, the age-limits given for men and women in the Act reinforces the patriarchal values that men have to be older than women. It also remains silent on the procedure to be followed if only one of the parents is eligible as per the clause, whereas, the other is not.
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The Act also enforces the surrogate to be a close relative of the couple, aged between 25 to 35 years which may lead to physical abuse and domestic violence due to the added pressures from the families to become surrogates for the other family members.
The law comes as a discriminatory mark against children with disabilities. The Act considers having children with physical and special needs as childless. It further encourages considering surrogacy if the couple has a child with a life-threatening disorder. This clause directly violates the right of the children with the disability, thus denying them treatment with dignity.
The Act is a clear slap on the face of the LGBTQ+ community and single fathers who want to have a child. The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. This law comes as a backlash to the other laws passed in favor of the LGBTQ+ community, like banning Section 377 and Right to Privacy. Moreover, by restricting the Act only to the cis-gender heterosexual couples and single mothers (widows and divorced), the Act infringes the right to parenthood for the LGBTQ+ population and single fathers, as defined under Article 21 by The Supreme Court of India.
To conclude, despite perceivably noble intentions and well-thought-out plans to protect surrogate mothers, it reinforces the typical patriarchal values of society by assuming the institution of heterosexual marriage as the basis for parenthood, which goes against the fundamental rights of the LGBTQ+ population, single men and women.
Karan Babbar is a PhD Scholar at the Ravi J Matthai Centre for Educational Innovation, Indian Institute of Management, Ahmedabad.
M. Sivakami is Professor at the School of Health Systems Studies, Tata Institute of Social Sciences, Mumbai. She is on Twitter.
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