Flying in the face of the government’s views on surrogacy, a Parliamentary panel has recommended much more liberal norms that call for allowing live-in couples, divorced women, and widows to choose surrogates. Slamming the power structure in an Indian family that it said is skewed against women, it has underlined compensation rather than altruism as the guiding principle of surrogacy.
The 31-member Parliamentary Standing Committee on Health and Family Welfare, headed by SP Rajya Sabha member Ram Gopal Yadav, includes 12 BJP members. It has faulted the “altruistic-surrogacy-for-married couples” premise behind the Surrogacy (Regulation) Bill, 2016. And criticised the exclusion of live-in partners from the ambit of the legislation as well.
It has recommended that couples, including those in live-in relationships, should be allowed to choose surrogates from both within and outside the family. Altruistic surrogacy, the panel observed, is tantamount to exploitation.
The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016 and referred to the standing committee by the Chairman, Rajya Sabha in consultation with the Speaker, Lok Sabha on January 12, 2017
“Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary…altruistic surrogacy is another extreme and entails high expectations from a woman willing to become a surrogate without any compensation or reward but a decision based on noble intentions and kindness. Pregnancy is not a one-minute job but a labour of nine months with far-reaching implications regarding her health, her time and her family. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny,” observed the Committee in its report.
The panel cited what it called the unequal gender power equation within Indian society to fault the legislation’s intention to restrict surrogacy within the “private domain of family”.
“The Bill seeks to operate from the understanding that just by changing the nature of surrogacy from commercial to altruistic and confining the practice of surrogacy in the private domain of family would end the exploitation of surrogates. Such a proposition, however, ignores the ground reality that in Indian marital homes the decision-making power rarely rests with women and not so privileged or financially weak relatives who can be coerced into becoming surrogate mothers and the chances of coercion and exploitation are even more in case of close relatives due to family pressures,” the Committee said.
“Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member. A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy,” it said.
The Committee, which consulted many stakeholders and experts in the sector, found little merit in the the legislation’s aim to limit surrogacy to married heterosexual couples.
“…decision to keep live-in partners out of the purview of the Bill is indicative of the fact that the Bill is not in consonance with the present day modern social milieu that we live in and is “too narrow” in its understanding. Even the Supreme Court has given a legal sanctity to live-in relationships. Surrogacy is one of the least used options by childless Indians. If all these categories are to be banned then why have surrogacy at all. The Committee, therefore, recommends that the Department should broadbase the eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, divorced women/ widows,” the report says.
It has also come down against age restrictions. As per the Surrogacy Bill, altruistic ethical surrogacy is allowed for infertile Indian married couples where the woman is between 23-50 years and the man is between 26-55 years. The couple should be legally married, as per the Bill, for at least five years and should be Indian citizens. They cannot have a surviving child — either biological or adopted — except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
“It would be unrealistic to expect that all infertile persons will have a close relative between 25 and 35 years of age, having one child, satisfying all conditions as prescribed in the Bill and would voluntarily consent to be a surrogate mother altruistically for the infertile couples. This condition of close relative being surrogate mother will therefore cause acute dearth and unavailability of women to act as a surrogate mother and shut all options for the medically infertile for whom surrogacy is the only option to have their biological child,” the Committee has said.
Drawing examples from across the world, the committee said that compensated surrogacy is the order of the day and government should devise a way to fix compensation for surrogacy rather than insist on altruism but supported the government stand to limit surrogacy to only once in a woman’s lifetime. It also favoured the decision to debar foreigners from availing of surrogacy services in India.
Incidentally, when the Bill was approved by the Cabinet last August, External Affairs Minister Sushma Swaraj had enunciated the government’s stand.
“We do not recognise homosexual or live-in relationships, we do not want to entitle them…it is not in our ethos. That is why they are not allowed to commission babies through surrogacy,” Swaraj had said. “In commercial surrogacy one would just pay the surrogate mother and ensure that the mother and baby never come in touch. But in this case, it is an open thing, there are no ethical issues. The child would know who the biological mother is because it is a close relative,” Swaraj had added.