GS-II: Our notions of motherhood

NEWS

The Lok Sabha passed the Surrogacy (Regulation) Bill 2019. to regulate the practice of surrogacy in India and allow only “ethical altruistic surrogacy”.

Challenges

1. Heavy reliance on criminal law for managing social issues, criminalisation of choice and prejudiced ideas of what constitutes a family.
2. Disallows single, divorced or widowed persons, unmarried couples and homosexual couples from pursuing surrogacy to have children.
3. It stipulates that only a man and woman married for at least five years, where either or both are proven infertile, can avail of surrogacy.

Why the provisions are discriminatory

1. India’s jurisprudence recognises the reproductive autonomy of single persons, the rights of persons in live-in relationships and the fundamental rights of transgenders.
2. In Navtej Singh Johar vs Union of India, Supreme Court decriminalised consensual same-sex between consenting adults and held that the law cannot discriminate against same-sex partnerships.
3. Single persons have the right to adopt children in India.
4. Guidelines issued by the Indian Council of Medical Research in 2002 and the draft Assisted Reproductive Technologies (Regulation) Bills 2010 and 2014 permitted commercial surrogacy
5. The criminalisation of commercial surrogacy is a refusal by the state to actually consider the exercise of agency that leads a woman to become a surrogate mother.
6. A ban on commercial surrogacy stigmatises this choice and reinforces the notion of the vulnerable “poor” woman who does not understand the consequences of her decisions and needs the protection of a paternalistic State.
7. In our patriarchal society, it can be expected that young mothers will be coerced into becoming surrogates for their relatives. The Bill moves the site of exploitation into the private and opaque sphere of the home and family.

Altruistic surrogacy

1. The shift to altruistic-only surrogacy was made in the context of reports about cases of surrogate babies being abandoned and exploited
2. Problems of surrogate mothers being kept in “surrogacy brothels” and rich foreigners using the bodies of poor Indian women to have children.
3. PIL in Jayashree Wad vs Union of India sought to end commercial surrogacy in India. Based on the court judgement, the government declared that it did not support commercial surrogacy and would allow only infertile Indian couples to avail of altruistic surrogacy.
4. There is a danger of exploitation and abuse in commercial surrogacy.

Way ahead

1. Exploitation takes place because of the unequal bargaining power between the surrogate mother and the surrogacy clinics, agents and intending parents. This can be addressed by a strong regulatory mechanism with transparency and mandating fair work and pay for surrogate mothers.
2. Viewing commercial surrogacy as inherently exploitative and banning it expands the potential for exploitation as it would force the business underground.
3. The Standing Committee had recommended a model of compensated surrogacy which would cover psychological counselling of the surrogate mother and/or her children, lost wages for the duration of pregnancy, child care support, dietary supplements and medication, maternity clothing and post-delivery care.

Surrogacy is an important avenue for persons to have a child through a willing surrogate mother who can also benefit monetarily from the process.