By Lovanshi Arora

Surrogacy was legalized in India in 2002 and was framed under the guidelines issued by the Indian Council of Medical Research. However, these were crude and lacked any legislative force. With the rise in inadequate management of the process, Law commission of India in its report in 2009 recommended the need for substantial regulation. There were efforts to formulate the law in 2010, 2013 and 2016 but these were never passed. The Surrogacy (Regulation) Bill, 2019 too could not make it to both houses as the Rajya Sabha referred the bill to a Select Committee for its examination. Subsequently, the committee submitted its report in February 2020 and the Union Cabinet approved the same after incorporating some recommendations of the Committee. Mr. Prakash Javadekar, Human Resources and Development Minister said, “The Bill is aimed at banning commercial surrogacy and allowing altruistic surrogacy”.

Surrogacy is deemed as a contentious topic. The general perception towards Surrogacy is one of the two extremes: Some regard surrogates as ‘angelic mothers’ who bestow happiness upon a family and detractors believe the practice comprises ‘selling one’s motherhood’ for money. The context of this article will not be the duality of this topic but will rather focus on looking at it through the lens of a commercial or altruistic model as practiced in India. Altruistic Surrogacy refers to the non involvement of compensation to the surrogate other than the medical expenses and insurance cover during the pregnancy. Most radical feminists like Catharine A. Mackinnon would condemn commercial surrogacy as the commodification of women’s bodies through medical technology. They regard the practice to be an attack on women’s bodies and an extreme form of oppression. They fear that the compensation would induce the women who are usually from lower class  groups  into selling their wombs in turn demeaning their bodies. Whereas detractors such as some liberal feminists see it as a form of labour and acknowledge women’s service capable of monetary benefits- it is these complexities that make authorities classify this practice under the dark curtain of prohibition i.e., not up on stage for evaluation. 

India was deemed as a popular hub for surrogacy- because of the cheap medical facilities, and non-binding legal provisions that were made stricter after the first Apex court surrogacy judgment of Baby Manji in 2010. As per the Surrogacy Regulation Bill 2020, commercial surrogacy is banned and any form of its advertising, practice of importing the human embryos and exploiting the surrogate is prohibited. Many perceive it as a regressive move, because it strips women of their agency and bodily autonomy. In Suchita Srivastava v Chandigarh Administration, the Supreme Court has held that the right to reproduction forms an integral part of the right to life guaranteed under Article 21. These reproductive rights of women include the right to carry a baby, give birth and raise children. The state’s action to curtail the reproductive choices of women violates these fundamental constitutional provisions. The Supreme Court also looked into the case of B. K. Parthasarthi v. Government of Andhra Pradesh, wherein the Andhra Pradesh High Court held that the State’s interference on procreation amounts to a direct encroachment upon one’s “Right to Privacy”.

A wide range of gendered marketing prevails in the economic sphere. Many liberal feminist like Martha Nussbaum would opine that surrogacy as a process is not under the radar of stakeholders, otherwise surrogacy as a practice would have been banned. It is the societal image of surrogates’ that degenerates the importance of surrogacy when seen through the “ typical Indian societal” lens of ethical, moral, and cultural praxis. There are several services of women which are monetized such as babysitting, voluntary sex work and- the domestic job of a nanny. There were also claims by leaders for example- Kamal Hassan of Makkal Needhi Maiam (People’s Justice Centre) in Tamil Nadu made the pledge to provide wages to housewives in its party’s manifesto. Then a common question arises :- Where should one draw the line between an acceptable and unacceptable form of gendered marketing and labour?

Commercial surrogacy undeniably possesses potential for various forms of exploitation. Before 2015, in the unregulated Indian market, many women were subjected to unethical treatment- some were underpaid, others were unknown to the intended parents or the exploitative clauses of the contract. There were cases where surrogates were unaware about the process that they would be subjected to and were put through risky treatments without their consent. But this does not mean- that a blanket ban can erode all the remnants and future dangers of commercial surrogacy because in that case it is inevitable that black marketing of commercial surrogacy will gain prominence making the situation worse. If operated without oversight it might push vulnerable surrogates who are already in the business further into the situation of physical, mental, and economic violation.

Article 19 of the Indian Constitution provides for the freedom of trade and profession. Article 19 (6) provides the grounds on which such freedom can be restricted. In the case of Chintaman Rao v. State of Madhya Pradesh, the Supreme Court held these reasonable restrictions must not be arbitrary or excessive. It was observed that there must be a  reasonable balance between freedom permitted and the restrictions imposed. But if we critically analyze the Bill, it takes on a  one sided perspective and fails to attribute the value to the economic freedom of women. The implications of the ban of commercial surrogacy are not visible as yet because it has not become the law of the land. But one can gauge the situation in Canada where compensatory surrogacy was banned in 2004 , one in six couples suffer from infertility and they had to resort to agencies which are unregulated and unlicensed. It has generated the problem of non-transparency where surrogates provide duplicate or inappropriate receipts in order to earn over the pregnancy expense amount. This oversight has been resulted due to ambiguity in  rules  that is similar to the model adopted by India. Additionally, in order to better understand its fallouts,  one can also analyze by keeping it parallel to another gendered commercial practice- that of bar dancing which evokes similar questions of ethos and morality. Maharashtra imposed a ban on bar dancing in 2005 referring to it as vulgar and prone to the exploitation of women and human trafficking. Varsha Kale, President of the Bar Girls Association contended that the ban resulted in great damage as nearly 50,000 girls lost their jobs and 15% of them went into sex trade, some even committed suicide. The Bombay High Court held the ban to be unconstitutional and ruled that the prohibition was in violation of the fundamental right to equality of bar dancers and bar owners under Article 14 of the Constitution of India and the right to work in any profession, as guaranteed by Article 19(1)(g). Further the Supreme Court upheld this order as many women would then be forced to take on odd jobs to survive. Similarly, a complete ban on commercial surrogacy would be violative of Article 19(g). In addition to this, the Bill undermines the significance of remuneration. It was estimated that the money surrogates earned is 10 times more than their annual household income. For instance in California where surrogates are provided compensation, the average amount can range between $50,000- $80,000 which is roughly 40 Lakhs, even one tenth of this amount can provide financial stability to women from low income group.This financial independence can give opportunity to many women to exercise autonomy over domestic matters or even escape from their abusive families. In the patriarchal structure, a woman’s monetary contribution in the household  may associate her as a worthy member.

Although, the Bill proposes altruistic surrogacy, it merely assumes that in altruistic set up, the rights of surrogates are safeguarded but it does not pay heed to the fact that unpaid surrogacy is also exploitative. Only a medical insurance cover of 36 months will be provided by intended parents and the Bill expects the surrogate to go through the entire process out of compassion. Such stringent imposition can be counterproductive as the desperate couple might exploit women in a detrimental position owing to their poor economic condition or the lack of bargaining power.  It should be noted that women develop unique maternal bonds with the baby during the pregnancy and by virtue of the altruistic model, a unique conflict of interest can arise as there is a real possibility of women not parting with the baby. A surrogate from Chennai shares the pain of  giving up the baby and she mentions , “I know it’s not my baby after all, but I know that if I’d seen the baby, I wouldn’t have given it away.” Also, there have been some studies to show that women who are paid for their services as surrogates are more likely to overcome the emotion of attachment with the growing fetus.

There is little indication that lawmakers considered the inter-sectional aspect of how the law would impact women’s right to their bodies from the caste-class frame. The Bill does not address anything about the maternity leave for the surrogate which goes completely against the motive of the Bill to safeguard a surrogate’s interests. Even the parliamentary standing committee on the 2016 Surrogacy Regulation Bill recognised the drawbacks of restricting surrogacy exclusively to altruistic cases.  In a report on the Bill, the Committee remarked that the proposed altruistic surrogacy model is based more on a moralistic assumption than on any scientific criteria, and that “all kinds of value judgment has been injected into it in a paternalistic manner”. The Committee also recommended replacing the “altruistic” model with a “compensated” surrogacy model to indicate that a range of monetary payments to the surrogate mother should be permitted as reasonable compensation, but the Bill did not integrate these reforms.

It would be impractical to suggest opening commercial surrogacy in a holistic manner that is allowing foreign nationals to get the services, as it requires careful and comprehensive legal devices for fair implementation. The risk increases multifold in case of worldwide commercial surrogacy. Cases like Baby Manji Yamadav. Union of India  and Jan Balaz v. Anand Municipality and Others shed light on the arduous legalities of nationality, parentage, and citizenship involved which makes the whole process strenuous for the baby, intended parents, and the surrogate because it requires the country of the intended parents to cooperate with the legalities of the country where the baby is born. In Baby Manji, the baby’s citizenship was put in a gray area and the parents in the Jan Balaz case had to go through a  2 years long legal process because of Germany’s refusal of parenthood through surrogacy and India’s disagreement to provide children with visas.

Surrogacy is a disputed subject for many as it exhibits complexities in social, medical, cultural, and psychological domains which vary across the globe. Taking the case of India which lays its framework under international law and the Constitution, it is crucial to concert efforts towards viewing the Bill through a Rights based approach rather than a need-based approach. This article probes into the probable consequences and contrasts it with the commercial model. While both models require intense regulation, the feasibility of  implementation of the objective should be kept in mind which needs a healthy dose of realism in the Indian context.

Lovanshi Arora is a third year undergraduate student pursuing BA-LLB from O.P. Jindal Global University.

Image credits – BBC