- The Surrogacy (Regulation) Bill – 2016 bans commercial surrogacy and requires the surrogate woman to be ‘close relative’ of the couple, thereby allowing altruistic surrogacy. In order to curb unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and trafficking of women for surrogacy, the draft law has a provision for imprisonment upto 10 years along with a heavy fine. While ay move to curb exploitation and protect women’s rights is welcome, the Surrogacy Bill lacks foresight.
Critical Analysis of the Bill:
- Although the bill was made and passed with the intention of preventing exploitation of poor women, it has generated a lot of debate around the country. It also seems to be not in consonance with constitutional provisions. By placing restrictions on the right to have a surrogate child to heterosexual couples alone, the government has negated the equality to single parents and homosexuals.
- This is a clear violation of Article 14 of the Constitution, which assures every citizen “equality before the law or the equal protection of the laws within the territory of India.” By defining limiting eligibility criteria, the Central Government is seeking to deny a host of perfectly suitable individuals who are well within their rights to demand access to surrogacy services. This is certainly a direct contravention of the spirit of our constitution.
- Additionally, and equally controversially, the Bill fails to recognise and safeguard the equal reproductive rights of all women and men, irrespective of their sexual orientation, marital status, economic standing etc. The bill rightfully seeks to stop the physical, emotional and economic exploitation of Indian women through unethical surrogacy practices, and protect the rights of surrogate children.
- However, it adopts a highly discriminatory approach by not securing the reproductive rights of individuals who may have an alternative lifestyle, including those currently excluded by the Bill. As equal citizens of a progressive democracy, all Indian women and men should have the freedom to decide matters pertaining to their reproductive rights. They should have the right to decide when and how they want to start a family.
- Further, Article 21 of the Indian Constitution guarantees protection of life and personal liberty of all persons. The right to life enshrines the right of reproductive autonomy, inclusive of the right to procreation and parenthood, which is not within the domain of the state, warranting interference of a fundamental right. It is for the person and not the state to decide modes of parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in which the state, constitutionally, cannot interfere.
- Further, as per a Supreme Court ruling, live-in relationships are on a par with marriage and children born out of long-standing live-in relationships are legitimate. By limiting the option of surrogacy to legally married couples, the government is countering the acceptability of live-in relationships and setting a wrong precedent.
- 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. 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. 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.
- Also, the restriction that the surrogate must only be a ‘close relative’ of the commissioning parents may result in ethical issues wherein the child and the surrogate develop an intimate bond, given that both are known, accessible and related to each other.
- Moreover, if the surrogate wishes for her name to remain undisclosed, how will her privacy be protected when the deal will be happening within the family? Besides, the commissioning couple may face difficulties in finding a close relative who will willingly render the surrogacy service.
- This may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.
- A further provision of the Bill allows surrogacy only to legally-married infertile Indian couples, who have been married for at least five years. This is an archaic provision that is reflective of the patriarchal Indian mindset that a woman, if fertile, should bear a child herself rather than resort to scientific marvels that are otherwise available. This plausibly violates the ‘right to reproductive autonomy.
- The decision about reproduction is essentially a part of a person’s personal domain and should be left to the couple. Also, the requirement of a five-year wait after marriage to enter into a surrogacy arrangement and the age restriction of the commissioning parents (for the father to be between 26 and 55 years and the mother to be between 23 and 50) do not set out a robust intelligible differentia and rational nexus with the objects that are sought to be achieved.
- With the proposed establishment of National Surrogacy Board and State Surrogacy Board, the Bill proposes to overlook all cases of surrogacy and regulate Hospitals and clinics that offer surrogacy in India. Instead of regulating, it bans commercial surrogacy which may lead this vast industry go underground making the exploitation more easier (Countries like UK already experienced it). It will hurt women economically as they will lose their income and livelihood due to ban on commercial surrogacy.
- The Bill appears focused on banning surrogacy more than regulating it. Apart from that by imposing a ban on commercial surrogacy, the Bill might do more harm to women than was previously done. The demand for surrogacy is not going to suddenly vanish and the proposed Bill will only result in the creation of an illegal market that might make surrogate mothers more vulnerable to.
- The government should be open to consultation with all the stakeholders as healthcare industry, medical and scientific community, academicians from law and ethics branches and representatives of sexual minorities before taking the final call. Instead of a ban, the government should bring a regulatory environment for the regulation of surrogacy.