According to the Surrogacy (Regulation) Bill, 2016, only heterosexual couples — married for at least five years — who have been medically certified as infertile, are allowed to opt for surrogacy. Banning commercial surrogacy, the Bill requires the surrogate woman to be a “close relative” of the couple, thereby allowing altruistic surrogacy. In order to curb unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and trafficking of women for surrogacy, the draft law has a provision for imprisonment up to 10 years along with a heavy fine. While any move to curb exploitation and protect women’s rights is welcome, the Surrogacy Bill lacks foresight.
According to the Bill, only legally married Indian couples that are “medically proven infertile” can opt for surrogacy, hence excluding single people, live-in couples and same-sex couples. The Bill also allows only a “close relative” to be a surrogate mother, thereby excluding couples who might not have a close family unit, family support or members who would be willing to be support them. Inter-faith and inter-caste couples in India are often shunned by their families for breaking social norms, and will not enjoy family support as perceived in this Bill. The most recent example of this is the Hadiya case, where an inter-faith couple was harassed by the state under unfounded charges of “love jihad”. The hetero-patriarchal vocabulary of the Bill envisions a heterosexual couple, legally married and preferably within their caste, to be able to enjoy the right to have a child through surrogacy.
Additionally, citizens who still don’t have a right to marry — LGBT persons — are denied the option of having a child through surrogacy, as per the new draft law. Even after the historical judgment in Navtej Singh Johar vs Union of India, 2018, LGBT individuals are treated as second-class citizens in this country, as is clear through such legislation. This seems to be the running theme of the government’s “progressive” steps to change laws and policies. The Transgender Persons (Protection of Rights) Bill, 2018, also recently passed in the Lok Sabha, has no mention of civil rights such as marriage, civil partnership, adoption, surrogacy and property rights — thus, continuing to deprive transgender persons of their fundamental rights and the constitutional guarantees provided by the Supreme Court in NALSA vs Union of India, 2014.
Keeping in view the Supreme Court judgments in Navtej and NALSA, the draft surrogacy bill should include single parents, same-sex couples, transgender persons and different units of families that can access surrogacy — which is their only option of having children since Indian adoption laws are equally stringent. The fact that the government has failed to recognise the rights of the LGBT community goes to show that they are not viewed as equal rights-holding citizens. The legal system continues to perpetuate a toxic culture of the perfect citizen, the ideal family — while constantly weeding out the “outlaws” who transgress and dissent in society.
If tackling exploitation and trafficking are at the core of the Surrogacy Bill, there can be more effective ways of incorporating checks and balances in the process of commercial surrogacy. Issues such as the abandoning of newborn children, poor health services and exploitation of women — for surrogacy or otherwise — are much larger in scope, requiring long-term solutions. The government’s approach of banning and criminalising, whether it’s commercial surrogacy or trafficking or sex work, does not strike at the root of the problem. It only makes matters worse as women might still be exploited for commercial surrogacy but the stricter punishments will make the whole process invisible. And there will be no accountability for non-payment or abandonment of the newborn child.
Lastly, this bill also takes the right of the surrogate mother away, and makes the state the patriarch who decides how children should be born and raised in society. This moralistic notion of the purity of womb and family is at the core of this Bill, and takes away all agency and bodily autonomy away from the surrogate woman who might be in this business consensually. Akin to the state’s approach to sex work, the woman is viewed as a victim of exploitation, and not as a rights holding citizen who is exercising her freedom of choice to engage in a certain profession.