Various developments regarding regulation of surrogacy present interesting insights into the incrementally transforming legal terrain around family and reproduction in India. The most recent development is an amendment to the Surrogacy (Regulation) Rules, 2022, clarifying the permissibility of using donor gametes in surrogacy.
The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy. Only altruistic arrangements where women acting as surrogates do not receive any monetary remuneration or compensation are allowed. Further, it allows only gestational surrogacy where Assisted Reproductive Technologies (ARTs) such as In-Vitro Fertilisation (IVF) are used to induce the surrogate pregnancy. It also laid down age and other criteria for both the people intending to be parents through surrogacy and those who could act as surrogates. Only married couples and ever-married single women (widowed or divorced) can seek a surrogacy. The intending parents additionally have to produce a “certificate of essentiality” that attests to medical indications that justify use of gestational surrogacy. The Rules necessitated the use of their own gametes by intending parents.
The growing acceptance of surrogacy as a mode of family-making with the use of ARTs is sought to be codified in the law to bolster the legitimate status of surrogacy as a “new” mode of reproduction. This is done by defining who can be considered genuinely eligible or fit while others are deemed to be “misusing” it and therefore strictly excluded. A fulcrum of doing so is by placing it within marriage and a recognition of desire for motherhood among ever-married women who are widowed or divorced. Before its enactment, previous avatars of the Surrogacy (Regulation) Bill, were examined by different parliamentary committees. In legislative debates, several Members of Parliament highlighted the need to bring the proposed regulations in tandem with the reading down of Section 377 of the Indian Penal Code and The Transgender Persons (Protection of Rights) Bill (which has been enacted, since). Some also emphasised that one of the committees recommended allowing access for single women and live-in couples, but the law only partially addressed this concern by allowing ever-married single women and not others such as single men, same-sex couples or non-married couples.
The exclusionary approach in determining eligibility criteria by centering it on current or previous marital status is currently being contested in the Supreme Court by numerous petitions. These are being heard together by a bench of Justices B V Nagarathna and Augustine George Masih.
The regulation of ARTs and surrogacy assumes a celebratory stance towards reproductive technologies in general. It seeks to throttle the potentially subversive ways of deploying them. In the narratives that emerge from various rulings of the courts as well as stated positions of the government, there seems to be an urgency to do so. The uncritical celebration of ARTs hinges on the fact that it helps mitigate the stigma around infertility in a patriarchal context. This stigma itself is not questioned, and in this jubilation on the use of ARTs, alternative families that are not premised on purity of bloodlines are relegated to the margins.
The latest amendment to the Rules permits the use of either of the parent’s gamete along with a donor gamete in case of couples where either of them has a medical condition that necessitates such use. No such relaxation has been made for single women who are allowed access to surrogacy. Therefore, in gestational surrogacy that is permitted, there is an emphasis on absolute congruence with gamete contribution by intending parents. Along with such a move lurks the dangerous possibility of creating a hierarchy between different ways of making families, putting a premium on narrow understandings of “biological” relatedness. An important principle to be kept in mind here is parity of legal recognition of different forms of families. In as far as both surrogacy and adoption entail parenting children that one (or their spouse/partner) does not give birth to, they should be treated similarly in legislation in terms of the marital status of the prospective parents. The exaltation of compulsory biological relatedness to determine acceptability of surrogacy, currently in the law, must not become a way of creating a hierarchy between different modes of reproduction.
Interestingly, in its 2017 report that examined the proposed legislation on surrogacy, the Parliamentary Standing Committee on Health and Family Welfare had observed, “Adoption is a benevolent choice available to the community at large and the Government cannot force adoption in lieu of surrogacy. Surrogacy and adoption have to be an equal choice and in the name of adoption, the Government cannot take away the reproductive rights of couples to have a biologically related child through surrogacy” (emphasis in original; Para 5.23).
The distinction between a “choice” and a “right” is instructive here as it echoes the patriarchal premium on purity of bloodlines exacerbated by possibilities that ARTs posit. However, just as it is important to uphold non-discrimination in terms of access to various modes of family-making, it is imperative that there is no implied disparity in the status ascribed to these modes as well. It should arguably be sufficient to deem both as “equal choice” without the appendage of harping on a “right” that surrogacy supposedly fulfils in contrast to adoption.
The writer is assistant professor, Department of Political Science, School of Social Sciences, University of Hyderabad. Views are personal
