‘Fertility
tourism’ in India, prevalently called commercial surrogacy, emerged on the
scene in 2002 and went transnational within a year. Fertility clinics around
the country that are provide services of surrogating mothers for both the
foreign and Indian clients form a gigantic industry within the medical
profession. Surrogacy is generally undertaken by poor women who use it as a
survival strategy to make their ends meet.
Legal difficulties in commercial surrogacy came to light for the first
time in 2008 when a Japanese couple contracted an Indian woman to become a
surrogate mother. Unfortunately, prior to the woman’s delivery, the couple got
divorced. Consequently the child was born legally parentless as well as without
citizenship. It is perhaps because of the difficulties that accompany surrogacy
that pushed the Government of India to draft Surrogacy (Regulation) Bill in
2016.
This bill seeks to simplify the legal position of a child born out of
surrogacy and certifies that he/she will have all the legal rights as a citizen
and will not be abandoned by parents. The proposed bill also intends to bring
about a radical change by enforcing a comprehensive ban on commercial
surrogacy, permitting the scope of the same only to those couples who have been
married for 5 years or more. It further stipulates that the surrogate mother
can be a close relative only. As per this provision, the married blood relative
who has herself borne a child can be a surrogate mother only once in her
lifetime. Importantly, she cannot receive any money for her “selfless” act. The
Bill even proposes to convert surrogacy into an ‘ethical and altruistic
activity’ by putting forward different restrictions on its use.
The proposed bill has restricted surrogacy to legally-wedded infertile
Indian couples between the ages of 23-50 years (women) and 26-55 (men). Couples
with biological or adopted children are not entitled for having kids through
surrogacy. Besides overseas Indians, foreigners, unmarried couples, single
parents, live-in partners and gay couples cannot go for surrogacy as per the
proposed legislation. The drafting of Surrogacy Regulation Bill has sparked
numerous debates over the government’s role a domain which is considered to be
highly private – reproduction.
Commercial surrogacy has been criticized by many for its exploitative
nature. Most of the clinics, which are successfully carrying out commercial
surrogacy practices, would henceforth be forbidden to carry out their
activities under the current outline of the bill.
The government has described the new surrogacy bill as “revolutionary
step” towards women’s wellbeing. Commercial surrogacy is certainly not free of
problems. Surrogates have little idea about their rights, procedures and the
like. Where pre-natal care is hardly seen, post-delivery they are made to
surrender the baby immediately and are not given follow-up care. Moreover, a
vast majority of surrogate mothers come from economically weaker backgrounds or
are illiterate and have faint understanding of the contractual rights that they
are guaranteed on paper as they undertake this pain-staking task. They get no
legal or psychological assistance either.
The exploitation of women in the name of commercial surrogacy and the
non-payment of actual amount promised to them for surrogacy have added to the
exploitative nature of this already exploitative activity. However, bans are
indeed not the solution to these problems. It is being debated if surrogacy via
relatives will lead to new types of exploitation.
Banning of commercial surrogacy has also come under sharp criticism for
the restrictions it has put on those who can, legally, get a child using this
method. Many suggest that by placing conditions, such as the duration of an
existing marriage, exclusion of gay couples, this bill will certainly be out of
sync with the evolving social realities of India. Instead of banning commercial
surrogacy, many believe that increased and strict regulation of surrogacy could
have been the most effective way of ensuring that surrogacy doesn’t continue in
the same exploitative fashion that it does today.
Those who are opposed to the bill have called it as “inherently
illegal,” and even labelled the ban as a means to promote underground black
marketing. The state, it has been opined, should not meddle in something as
private as one’s decision to have a child and how, especially since surrogacy
is not a preference but a last resort for those wanting to have a child.
However, many countries across the world have banned commercial
surrogacy including Australia, the UK, Canada, France, Germany, Sweden, New
Zealand, Japan and Thailand etc. Given that many countries have passed
legislations banning surrogacy, the bill on surrogacy introduced in India
appears to be in consonance with global norms. Forbidding commercial surrogacy
can possibly increase the prospect for adoptions in India.
The draft Surrogate (Regulation) Bill endeavours to thoroughly deal with
the concern of surrogacy in India. The sensitivity of the bill is indeed
banning commercial surrogacy. Commercially profiteering from a woman’s womb by
exploiting her vulnerability is an awful offence. The drafting of Surrogacy
Bill 2016 therefore seeks to protect the defencelessness of women in India from
different types of offences.
*Neha Gupta is a Research Scholar at
Dibrugarh University, Assam
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