Despite frequent disruptions, the Lok Sabha on Wednesday passed the Surrogacy (Regulation) Bill, 2016, which bans commercial surrogacy in India.
The deliberations regarding surrogacy bill began in 2009. The Law Commission of India in its 229th report recommended a prohibition on commercial surrogacy, a procedure by which a woman accepts a fee to carry an embryo for another couple. The statement and objects of the law declared that India had become a hub for commercial surrogacy and several incidents of women being exploited had come to light. The law seeks to end such exploitation and regulate non-commercial or “altruistic surrogacy”. The law bans women from accepting payment to become surrogates. The Bill says no money can be paid except “the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother”. The surrogate must be a “close relative” of the couple.
Opponents of the ban contend that in a country like India, an outright prohibition of commercial surrogacy will only push the business underground, into the black market. This, they say, will only lead to women being exploited even more. But proponents of the ban cite the bioethical problems of allowing commercial surrogacy, which treats a woman’s body as a commodity in the marketplace.
While the Law Commission sought a ban, a Parliamentary committee that analyzed the Bill opposed an outright ban and called the government’s attempts too “moralistic”. It robs women of their choice and denies them financial benefits that could help their own families.
Ethical questions aside, the complexity of the Bill has also come under severe criticism. First, the Bill reinforces archaic ideas of familial relationships. It mandates that only “close relatives” can become surrogate mothers, forgetting that inequality plays its part within families and keeping the transaction within the family fold may not mean that the surrogate has made a free choice. Second, the law prohibits homosexual couples from commissioning surrogates, mandating that the couple should be a man and a woman who have been married for at least 5 years. This is out of tune with other developments in constitutional jurisprudence over the past few years, including the decriminalization of homosexuality by the Supreme Court in September. Though homosexual marriages are still unrecognized in India, this Bill points to the discrimination against people who are not heterosexual.
As the bill was being discussed in the Lok Sabha, the lower house of parliament, the health minister, J P Nadda, said: “Even NGOs and civil society were of the opinion that commercial surrogacy must be stopped. “Exploitation of surrogate mothers was also an issue. The government decided to come out with the bill keeping the Indian ethos in mind, so that exploitation of surrogate mothers could be stopped.”
The Bill puts in place a bureaucratic web that has the potential to become an exploitative tool in itself. Even filing cases against violations require some form of bureaucratic consent. There is also the problem of that the regulations do not align with international laws, given that many prosperous countries continue to allow commercial surrogacy. This means that clinics and agents will be tempted to use illegal methods to meet the demand of clients. Also curious is the provision to give women who offer commercial surrogacy the same punishment as agents and clinics – 10 years in jail. Dr. Ranjana Kumari of the Centre for Social Research, a women’s rights group based in Delhi, said: “I think it is a little extreme to ban it completely, we would have liked to have seen better regulation. That way at least it would have remained in the open.
“Given the social relations in some Indian societies, there is also a worry that due to power dynamics some females could be coerced into such situations.“Ideally, the regulation would’ve helped ensure consent, but it’s the law now so hopefully, it will still help.”The bill bans any form of surrogacy for gay people, single parents, and unmarried couples, prompting some to call it archaic.“It is a good bill but not modern enough,” said Supriya Sule, an MP for the Congress Party, during the bill’s debate. Ghosh Dastidar of the Trinamool Congress Party (TCP) said same-sex couples should also be allowed to have a child through surrogacy. Though hard data is extremely rare, some estimates said in the “fertility tourism” boom years between 2002 – 2015, some clinics counted gay – mainly American – couples as 40 percent of their business.
