- Akanksha G Prabhu, BSc. LLB (Hons.), Gujarat National Law University
I. Introduction
This article attempts to decode how the India’s latest Surrogacy Bill defeats the purpose of surrogacy itself. Its strict guidelines that only provide for altruistic surrogacy, side-line several important factors. It does so by failing to consider the demographic that requires such assisted reproductive techniques as well as the one that can benefit from it from a commercial standpoint. This article points out why taking these into account is crucial for effective surrogacy laws and finally provides suggestions on how to bring these considerations into effect.
II. Surrogacy and its purpose
Surrogacy is an Assisted Reproductive Technique (ART) where a woman becomes pregnant by either artificial insemination or by implantation of a fertilized egg created using in vitro fertilization (IVF) for the purpose of carrying the foetus to term for another person. The term ‘person’ is used herein instead of a gendered noun. Ideally, this seems to indicate that the gender, sexual orientation, social, or economic status of such person isn’t relevant. But in India, it is.
Assisted Reproductive Techniques are intended to assist any person who cannot reproduce naturally, and must thus, look to alternative options. Infertility, which constitutes an inability to conceive due to a defect in the reproductive system, is certainly one such cause. But it isn’t the only one. Even in the target demographic of cis-gendered, heterosexual couples, pregnancy complications post conceiving can pose a serious threat to the life of both the mother and child at later stages. Other than this, trans-gendered persons and those in same-sex relationships may find it difficult to conceive naturally due to biological limitations. Furthermore, a person may choose not to have a partner to raise a child with. Thus, there exist several reasons why persons may opt for ARTs.
Beyond this general scope, people often opt for surrogacy specifically in order advance their own genes to a potential offspring. Call it an inherent biological tendency or sample of vanity; surrogacy caters to this need to propagate one’s DNA further. So, while agencies such as adoption are available to couples, choosing to rent a womb is an active choice fuelled by specific needs. So, it is evident that surrogacy is an attractive option that is here to stay.
In 2002, India legalized all forms of surrogacy via Supreme Court decisions, followed by a regulatory framework of guidelines courtesy of the Indian Council for Medical Research (ICMR). The key point to note is that commercial surrogacy, where the surrogate accepts compensation for carrying the child, was also legalized. Given how this transaction takes the nature of a commercial contract, strict guidelines were necessary. The ones endorsed by ICMR unfortunately did not live up to the mark. As concern mounted pushing the need for a better, more concrete regulatory framework, the Indian system put forth the Surrogacy (Regulation) Bill, 2016. This Bill took the stance that the best way to regulate commercial surrogacy was to get rid of it altogether. It then proposed more stringent laws to narrow the availability of surrogacy options to include only heterosexual, married couples who were certified as infertile after an attempt to conceive for five years. In addition, the only surrogate available had to be a close relative who was willing to take on this burden for ‘altruistic’ purposes only. Needless to say, this Bill, nor its exact reproduction in 2019, successfully made it past the Houses of the Parliament.
Thus, in 2020, certain minor changes were proposed. The five-year term limit to declare infertility would be removed. Further, single Indian women in a given age bracket would also be made eligible to opt for surrogacy. Importantly, any willing woman could act as surrogate. But the rest of the narrow framework remained unchanged.
IV. The gate-keeping issue
Suffice to say, the problems with this Bill are many. Several scholarly articles have already tackled these issues from both legal and bioethical perspectives. The Constitutional violations of Right to Life, and Equality were brought into focus. The ethical concerns regarding narrowing the definitions of infertility and forcing couples to prove the same have been outlined. But the problem starts at an even more basic level. The Bill categorically prevents a considerable section of the public from availing the benefits of surrogacy, and thereby, defeats a fundamental aspect of its purpose.
This can be seen from two perspectives, that of the persons opting for this ART, and secondly, from that of the surrogate them self.
From the target demographic perspective, this Bill caters only to married, Indian, heterosexual couples who are infertile and belong to a specific age limit of about 23 to 55 years. For a nation that had earned credit as an international hub for surrogacy, this policy prevents foreign nationals from opting for it as well. While there is still is definite concern about the exploitative nature commercial surrogacy can take in such events, the solution is not to prevent access, but to regulate it.
On another note, this Bill’s distinction between those who may, and may not avail the personal benefits of surrogacy is extremely concerning for the future of inclusivity in India. An obvious consequence of the decision to gate-keep same-sex couples and transgender persons is that it significantly hampers much needed progressive change in that area. While decriminalising Section 377 of the Indian Penal Code was a welcome change, it isn’t enough. Refusing to reflect such changes all around solidifies the idea that the state never intended to fully embrace this change or to adequately broaden conservative Indian ideals. Given how same-sex couples and transgendered persons actually require the benefits that surrogacy offers, gate-keeping them from the same is not just unethical, but also harmful to their future within this country.
On the last line of this argument are the single parents. Single parent-hood has seen a significant rise in recent times. Indian law recognizes only women as capable of being single-parents for the purpose of surrogacy. An obvious issue with drawing such a line is that other genders who cannot naturally reproduce on their own are restricted from utilising an opportunity that provides a way out beyond the biological limitations of their own bodies. In a more social matrix, this focus on women further reinforces conservative notions that women are the ones expected to take on the burden of parenthood. And of course, that other genders are incapable of doing so despite several famous instances pointing otherwise.
From the perspective of the surrogate, the push to contain it only to altruistic surrogacy is problematic. Commercial surrogacy allowed for several women belonging to economically backward sections of society to earn a significant amount by acting as surrogates. As the state noted, surrogacy takes a significant toll on the surrogate’s physical, mental, and psychological health. Therefore, with that lucrative compensation aspect out of the picture, very few women will be willing to put their bodies through the rigors of childbirth. This effectively reduces the pool of surrogates available. In addition the Bill allows only for medical and insurance coverage for the surrogate. If a working woman opts to act as a surrogate, the monetary or opportunistic loss she may face is not accounted for. The goodness of one’s heart is often not enough incentive to take on such a significant responsibility.
Thus, the Bill, overall, defeats the very purpose of surrogacy as an ART by reducing its scope significantly.
V. Solutions
The problem here was not the nature of the parties involved in the transaction of surrogacy, commercial or otherwise. Rather, it was the unchecked nature of the transaction itself. Thus, the ideal response to a lack of regulation leading to exploitation should be to introduce the requisite regulation. This may involve a legislative framework that lays down procedural requirements and legally-binding obligations that protects the interests of all the parties involved. The guidelines should be switched from an advisory format to a normative one. This could look like medico-legal criteria required to be fulfilled that provide for the event in which the transaction falls through. Or it could be the creation of a nodal agency with associated state-wise bodies, as proposed in the 2020 Bill, to regulate the transaction till its completion. Either way, the focus should be on regulating the process itself instead of narrowing down its necessary outreach.
VI. Conclusion
Surrogacy is a key ART that provides opportunities for several classes of persons seeking to fulfil their dreams of attaining a biological child. Its scope is wide and its growth continuous. The Indian legal system’s attempt to reduce this scope by narrowing down the parties that can be involved in the same defeats the very purpose and advantage that surrogacy provides. Gate-keeping parties will hardly provide the desired result since it wasn’t the problem in the first place. In fact, it will result in a host of associated problems that may not be evident at first glance. While the intention of the government to preserve the sanctity of birth was noble, it is at the end of the day, ineffective. Therefore, it is important that these restrictive changes be rolled back to incorporate both regulations and the persons surrogacy can benefit.
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