Before the draft Surrogacy (Regulation) Bill 2016 was cleared by the Union cabinet on Wednesday, there were guidelines governing a woman’s womb. They sought to protect the woman, as this bill does too, from victimization at the hands of those whose need for a child may tempt them to overlook the exploitation rampant in the current commercial surrogacy ecosystem.
The Indian Council for Medical Research (ICMR) set guidelines that did not permit traditional surrogacy (where the surrogate’s own eggs were used; done to prevent an emotional link being formed between mother and child and to disallow all legal claims in the future). The guidelines, which were not legally binding, also stipulated that the surrogate should be between 21 and 36 years old, married, and have a child of her own.
In 2014, Mint’s gender editor Namita Bhandare wrote a profile of Dr. Nayna Patel—often called the ‘surrogacy pioneer’ of India—and the Akanksha Infertility Clinic located in Anand, Gujarat. There, she met some of the women in Dr. Patel’s Surrogate House. That is where the surrogates, whom Dr. Patel hires, live during their pregnancy.
All of them invariably belong to an economically underprivileged class; while the parents came from all around the world to benefit from the cheap yet good medical care offered by the clinic.
One of the women whom Bhandare met with spoke of a friend’s experience of foetal reduction: the commissioning parents only wanted one child, but the friend found out that she was carrying twins. Although the surrogate offered to keep one of the children, Dr. Patel reportedly refused. “(My friend) was very upset,” Renu, another resident of the Surrogate House, told Bhandare.
Yet, Dr. Patel was only following her own rules, which also included seeking consent not just from the surrogate, but her husband too, before she signed up for this.
It was not a perfect system.
Of the $30,000 (Rs.18.38 lakh) that couples paid for the service, only $8,500 (Rs.3.5 lakh) went to the surrogate.
In the rest of the country, which has hundreds of such surrogacy clinics (according to a 2012 UN report, it is a $400 million industry), the conditions were probably worse—lesser pay, no healthcare facilities, and probably no accountability or guarantee for payment. Women’s wombs are easy to exploit.
But, and here is a crucial point, the woman consented to carry a pregnancy to term for money. It was an option for a means of livelihood, undertaken often at great personal cost, but which nonetheless granted the woman the right to use her womb (the way other professions require her to use other parts of her body) to earn money. By shutting down commercial surrogacy—as this new bill seeks to do—the state, instead of helping the woman apply her agency in a more equitable environment, takes it away altogether.
The bill could have aimed at improving an exploitative ecosystem by ensuring effective legal recourse, stronger measures against cheating a woman who has chosen to undertake this option of livelihood, better remuneration, and a greater say in her healthcare regimen.
The bill, however, only permits altruistic surrogacy, or one in which a woman will not be paid to be a surrogate—only her medical expenses may be taken care of by the commissioning parents. The underlying attitude is one of protectionism and ends up discriminating against the woman yet again, by policing her body and preventing her from using it in ways that aren’t sanctioned by the state.
And this is just one side of the story.
While introducing the bill, Union minister of external affairs Sushma Swaraj said, “(The Bill) prohibits single parents, homosexual couples, live-in relationships couples to opt for altruistic surrogacy.” The only people, in effect, who can opt for surrogacy in the country are those who are heterosexual married couples, who have a medical reason to.
Single men and women, heterosexual couples who choose not to opt for marriage, gay couples, queer women, transgender persons (the Transgender Persons Bill 2016 is silent on the issue of marriage and adoption rights of transgender community) are all outside the scope of this new bill which comes into effect 10 months from now.
By excluding whole sets of people from the ambit of surrogacy, the bill also betrays a discriminatory attitude towards them. Why indeed prevent homosexuals from benefiting from the surrogacy law?
Or put another way, what does Section 377, which criminalizes certain forms of sexual intercourse and by inference, the Lesbian, Gay, Bisexual and Transgender (LGBT) population, have to do with surrogacy—a practice devoid of the sexual act? It’s evident that the bill privileges only one kind of family—those that are predicated on the conventional heterosexual marriage. Everyone else is marked for special and explicit denouncement.
By passing this bill, the cabinet has further victimized an even larger swathe of the population, including those who willingly opted for surrogacy.