The Surrogacy (Regulation) Bill was passed by the Lok Sabha on Wednesday, two years after it was introduced in Parliament’s lower House. The bill bars commercial surrogacy and allows only close relatives to act as surrogates to infertile couples for “altruistic” reasons. In doing so, the bill sticks to its original principles despite the criticisms by scholars, women’s rights groups as well as the Union Ministry of Health and Family Welfare’s Parliamentary Standing Committee. The discussion on the Bill in the Lok Sabha, just over an hour long, did scant justice to the issues that were raised in the two years after it was tabled.
Opponents of the ban on commercial surrogacy contend that outright prohibition would push the surrogacy market underground, defeating the regulation’s main purpose of protecting surrogate mothers. Its advocates raise bioethical concerns about treating a woman’s body as a commodity. In August last year, a Parliamentary Standing Committee responded to these concerns. It agreed with the arguments of the Bill’s proponents to an extent, but refused to go along with their “moralistic” reasoning. Keeping the surrogacy transaction within the family would, in a patriarchal set-up, reinforce the idea that a woman’s body is not her own, the committee contended. “In Indian marital homes, the decision-making power rarely rests with women and not so privileged or financially weak relatives can be coerced into becoming surrogate mothers,” it noted. Altruistic surrogacy, it observed, is tantamount to exploitation: “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 that surrogate mothers be paid for their services and that the process be called “compensated surrogacy”.
The committee also made a strong case for broad-basing the eligibility criteria by including widows and divorcees. It criticised the government for restricting surrogacy to married couples when the Supreme Court has given legal sanctity to live-in relationships. The need to broad-base the eligibility criteria should, in fact, have acquired momentum after the Supreme Court decriminalised homosexuality. Unfortunately, however, the Bill, passed by Lok Sabha on Wednesday, scarcely bears any imprint of this seminal verdict. It is true that homosexual marriages are still not recognised in India, but by prohibiting same-sex couples from commissioning surrogates, the bill continues to speak the discriminatory language of Section 377. In Lok Sabha, some members, including Kakoli Ghosh Dastidar of the Trinamool Congress and NCP’s Supriya Sule, did ask the government to expand the Bill’s scope. But a meaningful discussion on the issue proved elusive. The Rajya Sabha would do well to debate these matters threadbare when the Bill comes before it.