Is There Space For Commercial Surrogacy In A Democracy?

Currently, we see almost all aspects of our life determined by socio-political and economic interests. Internationally, India was previously viewed as a hub for baby production, owing to the ease and lack of legal processes as well as the availability of cheap and inexpensive procedures. The Law Commission of India referred to this business as ‘a pot of gold’, which was a $400 million a year industry. (1)

For more than a decade, legislation to regulate this practice has been seen in Indian law. The recent introduction of the Surrogacy Regulation Bill in 2019 abolishes commercial surrogacy as a whole and has been passed by the Lok Sabha. The reasoning given for a complete ban of this nature is that it is a ‘need of the hour’, considering there are 2,000-3,000 unregulated clinics that are in operation in India. The Bill is a means to check the unethical implementation, abandonment of children born of this practice and the exploitation of surrogate mothers seen.

To battle the aforesaid mentioned features, the current law only allows altruistic surrogacy for Indian couples, who have been married for five years and who are deemed to be infertile, to be permitted. Medical certificates have to be provided for both parties; one certifying the infertility of the intended parents and another certifying ability of the surrogate mother. The surrogate is restricted to the close relatives of the intended parents, who have to be married and have to have a biological child. It completely bans single parents, live-in couples or homosexuals from availing of this practice. These are some of the strict requirements of the law and anything outside these parameters are deemed to be illegal.

As Jairam Ramesh of the Congress said, “This close relative provision will effectively end the practice of surrogacy.” This law as it sits in the Rajya Sabha currently has very limited usage and does not seem to take into account the growing number of families that are different from the traditional structure. Ramesh added on to say that the Assisted Reproductive Technology (ART) Bill must be taken up first before the surrogacy bill, as the need to address the technology behind it is of the utmost importance. Thus, the Rajya Sabha has sought amendments in the Bill to be presented at the end of the next session. (2)

REASONS TO COMPLETELY BAN COMMERCIAL SURROGACY

In the past, there was no protection or regulation of this business from a legal standpoint. This gave rise to many harmful consequences ranging from financial exploitation of the surrogate mothers to the introduction of an entire reproductive trafficking business. India essentially became the ‘rent-a-womb’ capital of the world(3), where supremely cheap and unethical actions were allowed as compared to the rest of the world. Horrific living situations and explicit exploitation of surrogate woman from India(4) was the end result to meet the demand of international buyers. They were cheated off their earnings or blackmailed, with the agencies and organizations taking more than half of the money sum. No facilities for emotional support or assistance were given for the mentally draining process of childbirth.

It is also seen this career taken up women who are illiterate or uneducated and have no choice but to indulge in career paths such as this. (5) The entire service needs to be looked through a transactional perspective because that’s what it ultimately boils down to. Contracts are drawn up, fees are paid and no deviation from the plan is given any acceptance. These contracts are hard to comprehend for a layman who is educated, let alone a woman who is uneducated and has few options for livelihood. A surrogate mother is essentially a baby producing machine; the word machine is used here as it is expected of her to have no emotional connection or attachment to the child in order for the transfer to be satisfactory. The profit-making feature of the surrogacy industry will never cease as there’s always going to be more people who want a child as compared to those who will want to carry a baby.

WHY SHOULD COMMERCIAL SURROGACY EXIST?

What a woman does with her own body should be her choice and should not fall into the ambit of the law; however, all our rights have restrictions in order to ensure no misuse. The concept of commercial surrogacy provides an option for women who require another means to earn their livelihood. Women in India take to this occupation as it is ‘relaxing’ as said by Kokila, a young surrogate mother. She said that it is much easier than working in the fields, where she earned approximately 100 rupees a day, while as a surrogate she earns up to 450,000 rupees at the end of her 9 months. (6) This choice of bodily autonomy is inherent in our basic civil and fundamental rights. With this complete ban, it strips women of these rights. As much as a society might view this practice as immoral or unethical, the reality of the 21st century needs to be realized. It is an essential source of income to many women and with the right regulations in place; it can be kept away from exploitation and unsafe methods

No intelligible differentia or logic is seen for why unwed women or childless are not allowed to become surrogate mothers. These restrictions seen in the surrogacy bill limit the LGBTQ community, older couples, live-in couples, and single parents. This hampers the right to equality as provided for by Article 14 in the Constitution of India. Reproductive choices and actions are under the ambit of Article 21(7) which provides for the Right to Life and Personal Liberty. To curtail the reproductive choices of women in this manner would be an encroachment on these far-reaching fundamental rights.

There are harmful byproducts of this industry but a complete ban is unwarranted. The Parliamentary Standing Committee on the 2016 Bill recommended the replacement of altruistic surrogacy with compensated surrogacy which means a line of payments to the surrogate mothers in a reasonable manner. In the current 2019 Bill, none of these inputs are seen. Clearly, this shows us how lines need to be drawn and how much they need to be respected. The blanket ban can be seen as an infringement of fundamental rights that are essential to a democratic setup. However, even if a well-rounded regulatory set up is created, the implementation of the grass-root level has to be monitored in order to ensure no exploitation to the surrogate mothers. These realities in a nation like ours have to be acknowledged and then, weighted decisions regarding commercial surrogacy must be made.

[The author, Simran Anneka Lobo, is a 1st-year law student from Government Law College, Mumbai and has a keen interest in the interconnection between law, politics, and society. ]

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1. Shonottra Kumar, India’s Proposed Commercial Surrogacy Ban Is an Assault on Women’s Rights, THE WIRE, ( November 9, 2019), https://thewire.in/law/surrogacy-ban-assault
2. Neetu Chandra Sharma, Rajya Sabha moves to amend surrogacy law, LIVEMINT.COM (November 21, 2019), https://www.livemint.com/
3. Amana Fontanella-Khan, India, the Rent-a-Womb Capital of the World, SLATE ( August 22, 2010), https://slate.com/human-interest/2010/08/the-country-s-booming-market-for-surrogacy.html
4. Gita Aravamudan, As confusion over surrogacy in India deepens, who cares about the surrogate mother?, FIRSTPOST, (July 16, 2017), https://www.firstpost.com/living/as-confusion-over-surrogacy-in-india-deepens-who-cares-about-the-surrogate-mother-3817449.html
5. Nishtha Lamba, Why ban commercial surrogacy?, HINDU BUSINESS LINE, (January 19, 2018), https://www.thehindubusinessline.com/opinion/why-ban-commercial-surrogacy/article8124254.ece
6. Anand, The end of paid labor?, THE ECONOMIST, (September 1st, 2016), https://www.economist.com/news/asia/21706320-government-wants-ban-payments-surrogate-mothers-end-paid-labour.
7. 'What is the Summary of the SC Judgment Regarding Termination of Pregnancy in a Mentally Retarded Woman?’ (2013) 24 (2), Indian Journal of Clinical Practice < http://medind.nic.in/iaa/t13/i7/iaat13i7p184.pdf>