High as External Affairs Minister Sushma Swaraj’s Wednesday briefing on the Surrogacy Bill was on “Indian ethos” — from the disapproval of homosexuality to assumptions about high divorce rates in foreign countries — it disregarded other important aspects of the “Indian” mindset.
The association between the ability to have a biological child, preferably unaided by science, with masculinity or femininity is often ingrained in the Indian social milieu — and judgments tend to be harsher when the woman is the “guilty” party. The proposed law banning commercial surrogacy borrows heavily from similar laws in the United Kingdom and other European countries where it is not as much of a “curse” for a woman to be incapable of bearing her own child.
Also, while the government chose to point out celebrity “transgressions” of the proposed law, it is a fact that many women require surrogacy not because they are too fashionable to go through labour pains, but simply because their uterus will not allow them to carry a foetus to term. Statistics suggest 1 in 2,000 women may be incapable of doing so in a country like India.
That being the case, it is not just the Aamir Khans, Shah Rukh Khans or Sohail Khans of the world who need to go in for surrogacy. While it is true that surrogate mothers are exploited, and regulations are indeed, needed — a study by the Centre for Social Research some years ago revealed that in the surrogacy wheel that may be worth up to Rs 40 lakh, surrogate mothers are not paid more than Rs 3-4 lakh — it is also a fact that in a society where such a high premium is put on a biological child, it is the lure of anonymity that has kept the surrogacy industry in business.
In many families, when a child is born out of surrogacy, not even immediate blood relatives of the couple get to know, for fear of both social ostracisation and concerns about the future integration of the child in the family. In its insistence on altruistic surrogacy, the proposed Bill makes the identity of the surrogate mother open for the consumption of the family and beyond. And when information on a couple’s reproductive health is open to be sliced, diced and discussed, issues graver than just privacy are put at stake.
The USP of the present situation has been the fact that once a surrogate mother has been paid her dues and she has delivered the baby, the commissioning parents can keep her out of their lives for good. There is never any question of bonding between the child and its birth mother because the two hardly get any time together. But the proposed Bill’s insistence on altruistic surrogacy only through close relatives ensures that the child and its birth mother remain in the same sphere all their lives — a complex situation that is fraught with ethical and emotional dilemmas.
As Swaraj made it clear on Wednesday, the government envisions a social set-up in which a child grows up with the knowledge that there is a woman he/she grew up calling mother, but his/her aunt — or another relative — is also a mother. It cannot be a comfortable situation for any child or set of parents to have a ‘super’ mom lurking in the background.
It is feared that in its propensity to ignore social realities, the Bill will in effect drive the entire surrogacy industry underground. And on the other hand, it will deny couples who do not have a large “close” family — or members in it who might be willing to go through the physical ordeal for their sake — the right to have a baby through surrogacy. The only available option for them will then be adoption, which though increasingly common, remains far from reaching the levels of social acceptability in western nations whose legal provisions the proposed surrogacy Bill emulates.
Last but not the least, in its seemingly simplistic assessment that the only ill plaguing the fertility industry is surrogacy, the Bill turns a blind eye to a host of other issues that were to have been addressed by its earlier avatar, the Assisted Reproductive Technologies (ART) Bill, 2010.
Among other things, it restricted the number of times a donor could donate sperm and called for segregation of gamete banks and ART clinics, pinning a lot of the opacity in the industry to that conflict of interest. That Bill also sought to lay down minimum standards for ART clinics.
Without taking names, union Minister Sushma Swaraj on Wednesday attacked “celebrities” who had made surrogacy “a fashion” and a “shauq” — sometimes simply because they didn’t “want to put their wives in (labour) pain”. Some examples from Bollywood, and where these celebrity couples would have fallen foul of the proposed law.
Sohail Khan & Seema Khan
ISSUE: Proposed law allows only couples who are medically unable to have children, to choose surrogacy. They must get a close relative to bear the child. The Khans already had a son when they chose surrogacy to expand their family.
Aamir Khan & Kiran Rao
ISSUE: Couple have said Kiran had problems conceiving. Under proposed law, a divorced person who has biological children from a first marriage cannot, in his/her second marriage, go for surrogacy. Khan has two children from his first marriage.
Shah Rukh Khan & Gauri Khan May 2013
ISSUE: The same rules that apply to Sohail and Seema would apply to SRK and Gauri, who opted for surrogacy to have their third child, AbRam (above).
ISSUE: According to the proposed law, foreigners, single parents, gay people and people in live-in relationships are not eligible for surrogacy. Tusshar Kapoor is a single parent.