The Surrogacy (Regulation) Bill will be taken up in the ongoing session of Parliament. Last year, the Select Committee that examined the Bill failed to appreciate many of the concerns raised about the proposed legislation’s approach to a rights-based recognition of women’s bodily autonomy and the rights of other individuals who are effectively denied surrogacy as an option.
The committee did well to reject the Bill’s original provision of allowing only a close female relative (who has already borne children of her own) of an ‘intending’ couple to be a surrogate. This would have put undue pressure on eligible women within families and eroded their autonomy, while also limiting choices for ‘intending’ couples who have no such women relatives. The committee instead called for allowing any ‘willing’ woman to function as a surrogate. However, the fact that it kept surrogacy a purely ‘altruistic’ service is surely a spanner in the works for many couples who would want to exercise the option?
To be sure, there is always the danger of commercialisation of surrogacy and the resultant exploitation of underprivileged women in the ‘rent a womb’ model that thrived without regulation, post the partial legalisation of commericial surrogacy in 2002. But, the government certainly should not ask potential surrogates and ‘intending’ couples to bear the burden of regulatory failure. The fact that the financial aspects of surrogacy have been limited to only insurance and other prescribed charges payable to the surrogate means that the latter can’t be compensated.
Indeed, making goodwill and emotional connections between the surrogate and the ‘intending’ couple opens up an ethical minefield by restricting surrogacy, in effect, to only those who know the ‘intending couple’ closely. Not only this, in terms of women’s reproductive rights, the select committee’s recommendations reinforce traditional roles of women as passive vessels of reproduction; the ‘willingness’ of the surrogate actually becomes the vector for denying full reproductive autonomy.
The committee rightly does away with the five-year ‘waiting period’ for ‘intending’ couples, but fails to recognise the rights of LGBTQ+, singles, and live-in heterosexual couples to parenthood by keeping this option closed to them. It has been argued that adoption can always be the first choice, but even this is restricted to a few categories of modern families. The fact that this argument is seldom forwarded for heterosexual married couples makes it reek of lesser rights under Indian law for certain categories. Beyond this, the need-based approach, already quite limiting, restricts the scope of the option for many who may otherwise be allowed to choose surrogacy. It effectively denies the option to women who may be able to get pregnant but for whom pregnancy could be risky, or those whose careers could be affected by pregnancy.
The fixation with altruistic surrogacy as some sort of ‘exemplary’, ‘noble’ action, with ‘compassion’ being the prime driver rather than economic gain, serves little real-world purpose. A compensated model, with remuneration for the surrogate for loss of income/income opportunities during negotiation, gestation and post-partum recovery, is needed. It would be easy to regulate and would allow women reproductive and economic autonomy.