The surrogacy bill is dangerous overreach

External affairs minister Sushma Swaraj’s explanation of the draft Surrogacy (Regulation) Bill, 2016’s main provisions last week can be summarized by one particular statement she made: she believes surrogacy goes against the Indian ethos. As Supreme Court advocate Karuna Nundy later pointed out, there is an essential distinction between a nation’s cultural ethos and its constitutional ethos. The cabinet-approved bill has quite transparently been informed by the government’s idea of the former. Consequently, it is flawed on multiple levels.

The surrogacy industry in India has grown to over $2 billion with more than 2,000 assisted reproductive technology clinics. To date, there is no governing legislation. The Indian Council of Medical Research’s non-binding National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology Clinics in India, first issued in 2005, provide the only regulatory mechanism.

There is plainly a glaring gap here. The interaction of market forces and advances in medical technology has created a new, fluid landscape of bioeconomics—dubbed “markets in life” by Sharmila Rudrappa in Discounted Life: The Price of Global Surrogacy. A legislative framework that protects human rights is essential in such markets that deal with the commodification of human biology.

Unfortunately, the draft bill does more harm than good. To judge by Swaraj’s explanation, it bans commercial surrogacy on two grounds. The first is that it is exploitative. The second is that it is what economist Alvin E. Roth has called a repugnant market—one where widespread repugnance at certain kinds of transactions is grounds for restrictive policies. But the growth and acceptance of the industry over the years shows that repugnance is not a factor. And as Rudrappa and other researchers, civil rights activists and social workers have reported, the reality of exploitation is nuanced.

There are undoubtedly cases where economically disadvantaged women are exploited by agents who serve as recruiters or pressured into surrogacy by family for the sake of payouts. Equally, however, there are many women for whom surrogacy provides economic means in a milieu where this is hard to come by. It enables them to put an existing child through school, pay off debt or build a family house. To further limit the options available to these women in the name of protecting them—after failing to provide the social safety nets that would make surrogacy unnecessary—is nanny state logic at its most convoluted.

Limiting altruistic surrogacy to married, heterosexual couples goes further yet; it is illiberal social engineering. Single parents, unmarried couples, live-in partners and homosexual couples are all, plainly, socially and culturally unacceptable by the lights of this administration. And it has used the apparatus of the state to codify its regressive attitudes. This is overreach and runs counter to precedent: the Supreme Court has deemed live-in relationships on par with marriage and the Juvenile Justice (Care and Protection of Children) Act, 2015, allows for adoption by single parents and inter-country adoption. The cabinet has blithely disregarded this—as it has the questionable constitutionality of relegating a swathe of Indian citizens to second-class status in the domain of their personal lives, counter to the equality before the law guaranteed by Article 14 of the Constitution.

This ideological baggage has also overriden questions of implementation. The medical genie is out of the bottle; there is no putting it back. Nor is the demand for surrogacy going to vanish. All such legislation will do is drive the business underground, thereby depriving surrogates of the protection of the law and making them more vulnerable. Even a cursory look at the history of the underground abortion trade in the US prior to the legalisation of abortion via the US Supreme Court’s Roe v. Wade judgement in 1973 shows this. For that matter, given systemic inequalities, the legislation’s assumption that restricting surrogacy motherhood to close relatives via an altruistic model will prevent exploitation is wishful thinking. Indeed, disallowing compensation—fair payment for an essential service—entrenches exploitation.

Any legislation that deals with such a delicate issue must be informed by public debate and dialogue with all stakeholders. Its primary aim must be to protect surrogate mothers and the babies in multiple ways—from cutting out middlemen to ensuring adequate physical and psychological care. But the government has opted for the easy way out: a heavy-handed restriction of reproductive autonomy. This is a crying shame.

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