Foreigners, NRIs, single parents, live-in partners and homosexuals will be barred from having children through commercial surrogacy, if the bill cleared by the cabinet on August 24 is passed by Parliament. The draft bill also bars married couples who have biological or adopted children from opting for surrogacy. Only “altruistic surrogacy” will be allowed for needy infertile Indian couples. The bill aims to call a halt to the commercial exploitation of wombs that followed after surrogacy was legalised in 2002. While accurate figures are tough to come by, rough estimates point out that some 2,000 infertile couples — foreigners and Indian — hire the wombs of Indian women to carry their embryos through to birth every year. Poverty, relatively low medical costs, skilled medical personnel and lax laws have made India a haven for those seeking surrogacy. Activists and social scientists have pointed out that women who rent their wombs are the most vulnerable and their socio-economic condition makes them susceptible to exploitation. In 2014, in a controversial case, an Australian couple was reported to have abandoned one of the twins it had through a surrogacy arrangement because it already had a child of the same sex.
The business is, therefore, in dire need of regulation. Seen this way, the bill is a significant attempt to plug a gap. It proposes a penalty of Rs 10 lakh and imprisonment of not less than 10 years for violations. However, the ideological underpinnings of the draft are cause for concern. “We do not recognise homosexual relationships and live-in relations. That is against our ethos,” Union minister Sushma Swaraj is reported to have said. This when the Supreme Court, as recently as a month back, held that, “live-in relations are now an accepted norm in society”. Homosexuality, it is true, is criminalised in the country, but through a law enacted in colonial times and such criminalisation has rightly come in for sharp criticism from human and democratic rights groups — as well as all over the world.
Making surrogacy an endeavour motivated by altruism is also fraught. It uses the language of the organ transplant law whose pitfalls have been exposed by the frequent organ transplant scandals. Just as there are people who require organs, there are those who desire babies and are willing to pay for surrogates. Is the bill the best way to regulate the murky business that ensues? There is some time before it becomes an act. Let’s debate this out.