The Surrogacy Bill 2019: A lost opportunity for a truly beneficial legislation

[dropcap]T[/dropcap]HE Surrogacy (Regulation) Bill, 2019 was re-introduced in the Lok Sabha on July 15, 2019, having lapsed in December 2018 with the dissolution of Parliament. The introduction of the 2019 Bill, contains minimal amendments to earlier drafts and fails to engage with important critiques that arose between 2016 and 2019.

This Bill claims to combat the exploitation of women, rackets of intermediaries that import human embryos and gametes and a rise in the abandonment of children in the emerging surrogacy-hub of the world that is India. The Bill unequivocally bans commercial surrogacy, advocating for altruistic surrogacy only with "close relatives" as the sole legal method of biologically bringing a child into the world, outside the genetic mother's womb.

The problems that arise with this seemingly simplistic process are multi-faceted; the provisions are short-sighted, implicitly exclusionary and overtly arbitrary. The legislation (intentionally) reeks of inequality and moral conservatism, with its exclusion of the LGBTQ community, single, divorced or widowed intending parents and an emphasis on "familial altruism".

A critique of its lack of inclusivity can be found in this previous The Leaflet article. Its requirements that the close relative be "ever married", that the intending couple be married for five years before resorting to surrogacy, among other features, are arbitrary and without sound justification. Having squandered this chance to pave the way for equality, the government will have to face the brunt of a constitutional challenge on numerous grounds.

While there are numerous such concerns with the Bill and its scope, this piece will focus on the proposed form of "altruistic" surrogacy to analyse whether such a system is really in the best interest of those it seeks to protect.

Also read: The Surrogacy Bill, 2016: A step back for inclusivity

Altruism or Ethical – what should be the legislative focus?

Altruistic surrogacy is not a new concept to the Artificial Reproductive Techniques (ART) industry – in fact, it remains the legal form of surrogacy in numerous countries. It brings with it, however, its own host of problems, when allowed only by close relatives.

In India especially, the social context must be considered, when legislating such aspects of private life. The social stigma relating to infertility is immense in society. While this calls for a larger societal change in mindsets, the reality is that infertile couples are far more unwilling to admit their desire to have a surrogate child to people in their social and familial circles than to a medical expert at a surrogacy clinic. The social context of India and the (unsupported and incorrect) beliefs and perceptions of the public relating to infertility, bearing a child out of wedlock, and artificial insemination, are not conducive for altruistic surrogacy.

The assumption that non-commercial surrogacy will eradicate the 'exploitative nature' of the practice, is hasty. In fact, involving family, might lead to a greater number of complications that could include differing degrees of social stigma against both the surrogate mother and intended parents; allegations and character assassinations of the fidelity of the surrogate mother; familial pressure on younger married women in the family (even more so for daughters-in-law) who might be coerced to carry the child against their will.

The assumption that non-commercial surrogacy will eradicate the exploitative nature of the practice, is hasty. In fact, involving family, might lead to a greater number of complications that could include, but is not limited to – differing degrees of social stigma against both the surrogate mother and intended parents; allegations and character assassinations of the fidelity of the surrogate mother; familial pressure on younger married women in the family (even more so for daughters-in-law) who might be coerced to carry the child against their will; difficulty in parenting due to animosity within the family as the surrogate mother, being a 'close relative' remains present as an important person in the family, leading to unwanted intervention in decisions regarding the child's future; breach of confidentiality and privacy; unregulated payment in money or kind or a form of quid pro quo outside the formal procedure; to just list a few.

Altruistic surrogacy, therefore, while perhaps, sufficiently effective in other countries, is impractical in India when allowed only through close relatives which is exploitative in other ways. Instead of relying on a form of moral selflessness that is both almost impossibly idealistic and unfair to ask of an individual, lawmakers must engage with ethical interventions into the practice of surrogacy.

Regulation vs blanket ban of commercial surrogacy

Commercial surrogacy is banned in Australia, China, Japan, U K and most European countries. Be as it may popular, there is a case to be made out against the blanket ban on commercial surrogacy. At the core of this debate, in the Indian context specifically, lies a classic incompatible mess.

A paternalistic state, considerations of agency and autonomy of a woman over her body, the freedom of consent in exploitative circumstances and the neo-liberal market make up the elements of this messy knot. Without delving into a market analysis of the medico-tourism industry, a principle-based valuation brings out a clear winner.

It is admitted that in India, economic exploitation is rampant among poor women who resort to surrogacy to make money, wherein their socio-economic status robs them of free consent. However, to completely ban commercial surrogacy, does no justice and instead, takes away an otherwise lucrative option to lift their families out of poverty that these women earlier had access to. Furthermore, such a ban also overlooks the bodily autonomy and right to livelihood that women are constitutionally guaranteed in India.

Blanket bans lead to system failures; examples of sex-work or unregulated abortions, are overused, only because there is merit to the conclusions they highlight – criminalising practices does not lead to the eradication of the activity. Instead, it moves such practices underground into unregulated, and far more dangerous, terrain. This leads to greater risks of unsafe medical procedures that will fuel the resultant black market, an increase in abandoned children in the absence of accountability, and even more exploitation, with women in situations of such economic necessity, still looking for a way out of poverty. Therefore, the alternative of effective regulation that is developed to legally protect the interests of these women's health and economic situations, must be advocated for, instead of a ban on commercial surrogacy.

Compensatory regulated surrogacy – a middle ground out?

The introduction of a Surrogacy Bill is important, considering the lacuna in the law and exploitative reality but the framework of this one does not solve the issue. To criminalise payment beyond medical expenses and insurance cover (even to close relatives) and ban clinics offering surrogacy services is unfair and short-sighted.

It is suggested that a form of 'compensatory surrogacy' be introduced, with a focus on the child-bearer. A similar system was recommended by the Standing Parliamentary Committee, but without engaging with this pertinent critique, legislators have reintroduced the Bill numerous times. In addition to the medical expenses and insurance cover that is now mandated, the law should allow intended parents to provide payment to the surrogate mother, in recognition of the physical, mental and emotional toll, rearing a child (that is later separated from her) entails.

It could also include, reimbursement of the surrogate mother's opportunity cost – the income she would have received, had she not been carrying their child for nine months and expenses in finding another job, thereafter. In this system, a close relative that seeks to selflessly carry a child for the intended parents, as the Bill anticipates, still can (with or without payment) by the option of waiver.

Additionally, the possibilities that a regulated intermediaryhospital/clinic provide, cannot be overlooked. What we require is a framework that provides the freedom of confidentiality and possibility for surrogacy, for those that do not have or want to use such a close relative to carry their child, by involving a hospital intermediary that is heavily regulated, scrutinised and supervised. The regulations would have to ensure that the hospital is not unduly gaining; the surrogate mother is duly compensated and her health and well-being are made the obligation of the intermediary; licenses and registration processes are introduced for the women and clinics to ensure compliance with the law; among other important considerations.

This proposed framework would require a strengthened scheme of surrogacy boards to oversee the fair implementation of the beneficial legislation and to ensure that misuse by the clinic and hospital intermediaries does not occur. In short, this framework would bolster accountability of the intermediaries while ensuring the protection of the surrogate mother's health and economic security.

Concluding thoughts

In a simplistic and ill-considered manner, the Bill, unfortunately, ignores the real interests of its stakeholders and instead seeks to put forward a strange form of moral conservatism. It must truly consider the stakeholders it wants to benefit – intended parents who will seek this option to raise a child, and on the flip side, the women who have constitutionally guaranteed bodily autonomy and a right to livelihood, allowing them to take up surrogacy.

It is wholly unfair to expect a woman whether a close relative or not, to graciously provide nine months (and recovery time), to carry a responsibility as heavy as a child, without compensation and recognition for the toll on her physical and mental health. The altruistic surrogacy form, remains exploitative, albeit differently, for women who are close relatives – with zero payment, making it far worse.

While the suggested solution of a compensatory surrogacy system, admittedly needs further in-depth ideating and consideration, it better protects the exploited stakeholder, who is the intended beneficiary of this Bill, without robbing them of their bodily autonomy and right to livelihood. This system, therefore, offers the possibility of a regulated, non-exploitative alternative to unfettered commercial surrogacy and impractical altruistic surrogacy.

Veda Singh is a fifth-year law student at Jindal Global Law School. She has a keen interest in anti-discrimination law, socio-economic litigation and gender justice.