Since the enforcement of the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (Regulation) Act, 2021, several concerns have been flagged. Some provisions are being challenged in the Supreme Court for their constitutional validity.
The first trysts that courts in India had with surrogacy, in the 2000s, were cases of children who ran the risk of being rendered stateless when they were born out of transnational surrogacy arrangements, which have been effectively banned since 2016. More recently, courts have also examined the status of parenthood via surrogacy with regard to maternity leaves, and various issues around the eligibility for commissioning parents as well as women who can act as a surrogate. Jayashree Wad vs Union Of India (2016) argued for a prohibition on commercial surrogacy, which was brought about by the Surrogacy Act. However, there hasn’t been a close examination of the question of payments to the women who act as surrogates which would follow from considering the nature of their labour.
The Surrogacy Act prescribes a prohibition on “buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative”. Any “willing woman” between the ages of 25 to 35 years can act as a surrogate, once in her lifetime, altruistically, which includes coverage of medical expenses and a provision for insurance. Her informed consent is obtained through a form that delineates her rights and duties, including an “agreement” that she will “relinquish all rights” over the child upon birth. Some clauses in this also indicate that she is providing “help” to the seekers of surrogacy.
Payment to surrogates was a regular practice in the private healthcare sector that provisioned surrogacy as one of the options for seekers of infertility treatment. Various drafts of the ART Bills that included provisions to regulate surrogacy, also recognised it. It was in 2016, when a separate Surrogacy Bill was announced, that a prohibition on payments was proposed. There have been legitimate concerns of possible exploitation around the hierarchy between intending couples and clinics on the one hand and poor or distressed women who acted as surrogates at the behest of intermediaries, on the other. It remains debatable if removal of provisions for any kind of payment to the surrogate necessarily addresses this concern.
Another important argument against a payment model has been that it amounts to the sale of children. The draft ART Bills addressed this by proposing schedules of payment at different points in the pregnancy, so that it is amply clear that the payment is for the “service” of gestation.
It is also noteworthy that surrogacy is a mediated practice, given that gestational surrogacy requires intrusive medical intervention. It is also now a regulated practice with a central role of various bodies like the appropriate authority, district, state and national boards that receive applications, certify eligibility and redress grievances. Surrogacy is referred to variously as a “practice” and a “procedure”, in the Act. The term “service” is cautiously deployed, primarily to refer to what the clinics do, and is used in the context of defining commercial surrogacy such as “services of surrogate motherhood”. So, if the “service” is what is paid for, what the women acting as surrogates are thought of as providing is “help”. Therefore, the expenses incurred are sought to be provided for as is an insurance cover that addresses damages and in the worst-case scenario, compensation for death. It is worth pondering over: If compensation is deemed appropriate for the death of the woman as a consequence of performing this labour, why can’t compensation be given while they are alive?
Before its enactment, the Surrogacy Bills were examined by at least two Parliamentary Committees. The Department-related Parliamentary Standing Committee of the Rajya Sabha’s 102nd Report made some important recommendations for the 2016 Bill, which are relevant here. It noted that “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 practise altruism without a single penny”. It recommended allowing “reasonable compensation” over and above medical expenses and insurance coverage. Compensation should be fixed by regulatory bodies and not according to the bargaining power of parties involved, it argued. Further, that “compensation should be commensurate with the lost wages for the duration of pregnancy, medical screening and psychological counselling of surrogate; child care support or psychological counselling for surrogate mother’s own child/children, dietary supplements and medication, maternity clothing and post delivery care”.
Transitioning from a primarily commercial arrangement that clinics and other intermediaries facilitated, to one where intending parents are to seek “help” from a “willing woman” to act as a surrogate, has not been smooth. On the one hand, there have been instances of arrangements going underground with reports of rackets being busted. On the other, several of those who desire parenthood via surrogacy have struggled to find someone who would agree. Both these extremes show the need for regulating fair compensation. While the legislative intervention has set these important issues aside, it remains to be seen whether the Supreme Court views the question of fairness in compensation as distinct from the narrow logic behind prohibition.
The writer is assistant professor, Department of Political Science, University of Hyderabad. Views are personal
