7 PM | Respecting Reproductive Choice | 29th July, 2019

Context: The Surrogacy (Regulation) Bill, 2019.

More in News:

• The Surrogacy (Regulation) Bill, 2019 was re-introduced in the Lok Sabha on July 15, 2019, having lapsed in December 2018 with the dissolution of Parliament.
• The introduction of the 2019 Bill, contains minimal amendments to earlier drafts and fails to engage with important critiques that arose between 2016 and 2019.

Surrogacy: Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.

Altruistic Surrogacy: It means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother or her dependents or her representative.

Commercial Surrogacy:It means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo and trading in services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.

The highlights of Surrogacy (Regulation) Bill, 2019:

• The Bill prohibits commercial surrogacy, but allows altruistic surrogacy. 
• Surrogacy is permitted when it is for intending Indian couples who suffer from proven infertility and married for at least five years.
• The couple must be between 23 to 50 years old (wife) and 26 to 55 years old (husband)
• The couple should not have any surviving child (biological, adopted or surrogate). It would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.
• The surrogate mother has to be a close relative of the intending couple.
• The surrogate mother must be a aged between 25 to 35 years and married woman having a child of her own.
• A woman can be a surrogate mother for once only in her life time.

Objective of Surrogacy (Regulation) Bill, 2019: To combat,

• the exploitation of women
• rackets of intermediaries that import human embryos and gametes
• rise in the abandonment of children in the emerging surrogacy-hub of the world that is India. 

Issues with the Surrogacy (Regulation) Bill, 2019:

• The legislation (intentionally) reeks of inequality and moral conservatism, with its exclusion of the LGBTQ community, single, divorced or widowed intending parents and an emphasis on “familial altruism”.
• The assumption that non-commercial surrogacy will eradicate the exploitative nature of the practice, is hasty. In fact, involving family, might lead to a greater number of complications such as:
  • differing degrees of social stigma against both the surrogate mother and intended parents
  • allegations and character assassinations of the fidelity of the surrogate mother
  • familial pressure on younger married women in the family (even more so for daughters-in-law) who might be coerced to carry the child against their will
  • difficulty in parenting due to animosity within the family as the surrogate mother, being a ‘close relative’ remains present as an important person in the family, leading to unwanted intervention in decisions regarding the child’s future
  • breach of confidentiality and privacy
  • unregulated payment in money or kind
• Such a ban also overlooks the bodily autonomy and right to livelihood that women are constitutionally guaranteed in India.
• Blanket bans lead to system failures. Criminalising practices does not lead to the eradication of the activity. Instead, it moves such practices underground into unregulated, and far more dangerous, terrain.
• It is wholly unfair to expect a woman whether a close relative or not, to graciously provide nine months (and recovery time), to carry a responsibility as heavy as a child, without compensation and recognition for the toll on her physical and mental health. The altruistic surrogacy form, remains exploitative, albeit differently, for women who are close relatives with zero payment, making it far worse.

Way Forward:

• The 228th Law Commission India Report on Commercial Surrogacy too strongly recommended prohibiting commercial surrogacy. However, it said that “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.”
• The introduction of a Surrogacy Bill is important, considering the lacuna in the law and exploitative reality but the framework of the bill in present form does not solve the issue. To criminalise payment beyond medical expenses and insurance cover (even to close relatives) and ban clinics offering surrogacy services is unfair and short-sighted.
• A form of ‘compensatory surrogacy’ should be introduced, with a focus on the child-bearer. A similar system was recommended by the Standing Parliamentary Committee.
• In addition to the medical expenses and insurance cover that is now mandated, the law should allow intended parents to provide payment to the surrogate mother, in recognition of the physical, mental and emotional toll, rearing a child entails.
• It could also include reimbursement of the surrogate mother’s opportunity cost i.e, the income she would have received, had she not been carrying their child for nine months and expenses in finding another job, thereafter.
• Compensatory surrogacy system needs further in-depth consideration before its introduction. It must better protect the exploited stakeholder, who is the intended beneficiary of this Bill, without robbing them of their bodily autonomy and right to livelihood. This system, therefore, offers the possibility of a regulated, non-exploitative alternative to unfettered commercial surrogacy and impractical altruistic surrogacy.

Source: https://www.thehindu.com/opinion/op-ed/respecting-reproductive-choice/article28739407.ece