| Introduction: Contextual Introduction Body: Highlight ethical dimensions and legal dimensions of the Act & should surrogates be entitled to financial compensation. Conclusion: Way forward |
The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy and allows only altruistic surrogacy, limiting compensation to medical expenses and insurance for surrogate mothers.
Ethical Dimensions & Legal Dimensions
- Fair Compensation: Surrogacy involves physical and emotional labor for nine months, yet under the Act, surrogates receive only medical expenses and insurance. Ethically, this is unfair as all other stakeholders are compensated except the surrogate.
- Exploitation Concerns: The Act aims to prevent the exploitation of poor women. However, banning compensation entirely may push surrogacy underground, risking further exploitation rather than addressing it.
- Constitutional Challenges: The Act’s provisions, including the ban on commercial surrogacy, face legal challenges for violating surrogate rights. Intending parents also struggle to find willing surrogates.
- Parliamentary Recommendations: The 102nd Parliamentary Committee recommended “reasonable compensation,” including covering lost wages, medical care, and post-delivery support, to ensure fair treatment.
Should Surrogates Be Entitled to Financial Compensation?
- Recognition of Labour: Pregnancy is a form of labor, and surrogates should be fairly compensated for their time, effort, and the physical risks involved. Denying them financial compensation perpetuates the notion that their work is not valued, which contradicts basic labor rights principles. Compensation, if regulated properly, ensures that surrogates are not exploited but are adequately rewarded for their services.
- Regulated Compensation as a Middle Ground: A fully altruistic model may not be realistic or fair in many cases. A regulated compensation framework, as suggested by the ART Bills, which proposed a payment schedule during pregnancy, could ensure that surrogates are paid for their labor while safeguarding against exploitation. This middle ground acknowledges the service they provide without commodifying the child or the surrogates.
Conclusion
The Surrogacy (Regulation) Act, 2021 addresses concerns about the exploitation of surrogate mothers by banning commercial surrogacy but leaves critical ethical and legal questions unresolved. Denying surrogates compensation for their labor overlooks the physical and emotional toll of pregnancy. A regulated compensation model could strike a balance between protecting surrogates from exploitation and ensuring fair recognition of their labor. The Supreme Court’s future rulings on these constitutional challenges may determine whether the current altruistic model stands or if compensation will be deemed necessary.
