Surrogacy in India

Explained: Altruistic Surrogacy


Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Surrogacy (Regulation) Bill, 2016

Mains level: Various laws for the protection of women from exploitation


What is an altruistic surrogacy ?

  1. According to the new Surrogacy (Regulation) Bill, it includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.
  2. This line separates altruism from the commercial tinge that surrogacy carries with it.

Reasonable Expenses to Surrogates

  1. In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
  2. The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilization (IVF) but may include other ‘expenses’.

Defining Motherhood in such cases

  1. Altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
  2. In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.

Role of the surrogate

  1. As per the new Surrogacy Bill, the surrogate in India continues to fulfill her role as a gestate.
  2. In keeping with the gestational surrogacy, the current Bill is faithful to the ICMR’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
  3. The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
  4. The relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.

Altruistic vs. Commercial Surrogacy

  1. The commercial surrogacy arrangement in India was an exchange of money for services: and yet, clinics and surrogacy agents went to great lengths to transform the commercial elements.
  2. These elements included were primarily identified as the surrogate’s fees, into gift-giving, and sacrifice.
  3. In that sense, altruistic surrogacy is not very different from its opposite commercial variant.
  4. Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
  5. Here, kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
  6. Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.

A Parallel Case in Organ Donations

  1. Let’s look at the Transplantation of Human Organs Act (THOA), 1994, as a parallel to the conversation on altruism and its linkages with commercial surrogacy.
  2. The Act prescribes that organ donors are allowed to donate their organs before death only to ‘near relatives’.
  3. Donating organs to ‘strangers’ or not near relatives before death is not allowed, and may be approved of only through the authorisation committee.
  4. The category of the ‘near relative’ appears again in a similar vein to the ‘close relative’.
  5. But unlike the Surrogacy Bill, the THOA identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.
  6. It’s a closed group of relatives — within the structure of the nuclear family unit — members who may not be eligible to be surrogates, unfortunately.

Word of caution

  1. By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a murky turn.
  2. Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
  3. In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
  4. In facilitating altruistic surrogacy among close kin, we have to be wary of the kind of exploitation we are fostering.
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