The Surrogacy Bill 2016 allows only ‘altruistic’ surrogacy by a close relative for heterosexual Indian couples who have been married for five years and are childless. By putting a bar on homosexual couples and single persons, the State has constructed a category of people who can become parents in resonance with the larger patriarchal bias of the State and in the law. It conforms to the current legal framework that still does not acknowledge and respect the reproductive and sexual rights of most individuals, particularly people who are gay.
Further, the Bill makes a hugely misplaced assumption that ‘surrogacy’ within the ‘family’ and in the absence of any monetary transaction is non-exploitative and ‘altruistic’. Given that the institution of family as a location of patriarchal power, coercion and violence is well established, it is not difficult to imagine the pressures that may come to bear on women within families to act as surrogates.
As per the new Bill, surrogacy is only conditionally permitted and it bears similarities with the law for regulation of transplantation of human organs enacted in the 1990s. As is evident from the experience of implementing the transplantation law in the last few decades, bans run the risk of creating black markets in the absence of robust regulatory mechanisms that ensure proper implementation. Most important, a ban or prohibition provides no mechanisms beyond legal penalties to address health and human rights concerns that may emerge as a result of ‘underground’ surrogacy arrangements, which are likely to have greater risks of exploitation and increased vulnerability of surrogates.
The Surrogacy Regulation Bill 2016 has emerged in separation from the various earlier versions of Draft ART Regulation Bills from 2008-2015, which included regulation of surrogacy as well. The Draft Assisted Reproductive Technologies (Regulation) Bill and Rules, 2014, was the latest version of the proposed legislation before this. The broad approach adopted in this 2014 Draft Bill was to regulate and supervise the operation as well as the services provided (including surrogacy) by ART Clinics and IVF Centres in the country.
However, in formulating a separate legislation for surrogacy, the government should not lose sight of regulating the provisioning of ARTs and IVF in India. Inadequate protection against malpractices, which exist in the transnational ART industry leaves much to be desired from the perspective of medical ethics and reproductive justice.
There is a need to question the rationale behind the ‘solutions’ offered by the State to regulate surrogacy and also recognise that the practice of commercial surrogacy is fraught with many pressing dilemmas that go much beyond a binary of commercial versus altruistic surrogacy.
Sarojini N is with Sama- Resource Group for Women & Health