By Devansh Singh

Abstract

Surrogacy Rights can be a very important part of a woman’s right to her bodily autonomy. The government’s regulation of Surrogacy can be considered as an attack on the same. This article delves deeper into the regulation of surrogacy rights in India.

Surrogacy is an important point of contention in India in light of the notions of morality, and economic conditions of surrogates. It has become even more critical after the passage of the Surrogacy Regulation Act, of 2021 in India. Surrogacy, as defined by the act, means a practice whereby one woman bears and gives birth to a child for an intending couple to hand over the child to the intending couple after the birth. The term “intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy. Surrogacy has been mainly put into two categories based on the reasons for which a surrogate agrees to surrogacy. In Altruistic Surrogacy, “no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred by the surrogate mother and the insurance coverage for the surrogate mother, is given to the surrogate mother”. The second form of surrogacy is Commercial surrogacy. It includes selling or buying of human embryos or trading in the sale or purchase of human embryos or gametes or selling or 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. The stakeholders in a situation involving surrogacy are women who act as surrogates, people who want to be single parents (including widows, widowers, divorcees, etc.), couples who aren’t biologically capable (proven infertility and essentiality for surrogacy), and couples who are biologically capable but still want to opt for surrogacy.

These categories can involve people belonging to the LGBTQIA+ community because of the evolving definition of family and foreigners who come to India for surrogacy because it is 5 times cheaper in India. The Supreme Court has gone for a broader understanding of family by saying that same-sex couples or single parents will have the same rights as a heterosexual couple could avail under the pretext of a family. Commercial surrogacy was legalized in India in 2002 and ICMR guidelines for regulating Assisted Reproduction in clinics were approved in 2005. However, eventually, commercial surrogacy was banned by the government in 2015. Here too, a distinction was created by banning foreign homosexual couples and single parents first in 2013. After this happened, the Government finally passed the bill in 2021 which allowed altruistic pregnancy only for married heterosexual couples with a specific age limit where one of them or both of them have a biological issue making gestational surrogacy necessary. The act also allows Indian women who are a widow or divorcees between the ages of 35 to 45 years to avail of surrogacy. It only allows cisgender heterosexual couples who have been married for 5 years to be allowed for surrogacy. 

The reason for introducing this act is based on the fact that many women were being exploited by couples and agencies connecting couples with surrogates. They often gave them less money and there was a higher risk to the women’s health. Also, provided the economic condition of many women they agreed to become surrogates at a very cheap price which is a direct unfair disadvantage due to their vulnerability. Moreover, the act criminalizes commercial surrogacy with a fine and imprisonment of up to 10 years. This act is aimed at preventing the exploitation of women and stopping reproductive tourism but has its flaws. Firstly, it puts many women who used surrogacy as a source of income to secure their future economically. The act in a very patriarchal fashion tries to take away economic returns a woman gets through her work and expects her to do it for free using bonds of kinship. It is another nail in the coffin that is carrying women’s rights because women who are single or childless are not even allowed to become a surrogate.

Many economically disadvantaged women were forced to give up a source of income.

This income being an amount could have helped her with many other aspirations by giving them enough money to start an enterprise of their own or gain education to improve their skills. Whatever value judgments are attached to surrogacy, the government has no right to restrict their reproductive or economic autonomy. Secondly, it very clearly excludes members of the LGBTQIA+ community from the right to parenthood through surrogacy. The act clearly states that only heterosexual couples are allowed to opt for surrogacy, thus, confirming heteronormative notions. However, now even the Supreme Court has recognized same-sex couples to constitute a family. It said that same-sex couples or single parents deserve the same benefits as offered by the law to heteronormative couples.

The assumption of heteronormativity while drafting laws ignores the notion that many families do not conform to it. But these people can be good parents or parents too. So, same-sex couples, single parents, etc. should be brought under the ambit of this act. Moreover, women who are already a disadvantaged community in many ways in society can be forced into becoming surrogates in the name of altruism using coercion or undue influence. This will eventually increase the probability of violence and oppression of women.

One of the many solutions to mitigate the flaws, as suggested by scholars, is through compensatory surrogacy which will involve a contract stipulating terms for the surrogacy involving well-being, and insurance. So, the main conclusion of this argument is that instead of banning commercial surrogacy the government should bring in strict laws and even stricter implementation of the laws regulating commercial surrogacy to protect the rights of women who want to use their reproductive labour for economic benefits. This should be irrespective of the notions of immortality. But the safety of women is a factor that can not be forgotten because many women are forced into surrogacy by their husbands or other family members leading to even more exploitation and harassment and not receiving any benefits.

The government might be right in protecting the interest of women who were being exploited by middlemen, couples, etc. but a better solution could be a very strict regulation of commercial surrogacy instead of banning it.

Author’s Bio

Devansh Singh is an aspiring lawyer, currently in the third year of his law school journey at Jindal Global Law School.

Image Source: https://www.winfertility.com/blog/surrogacy-the-whys-and-hows-of-using-a-gestational-carrier/