The Crucial Questions That the Surrogacy Bill Leaves Unanswered

Much debate and resentment has transpired amongst many women’s groups and activists over the Surrogacy (Regulation) Bill, 2019, which was passed by the Lok Sabha. The big question — how much right does the State have over women’s bodies — was stirred one again.

What Does the Bill Entail?

It has prohibited surrogacy for commercial purposes, but allowed it for altruistic purposes. The intending couple is supposed to produce a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by authorities. The criteria involve:

1. Indian citizenship and five years of marriage
2. Age limit: 23-50 years (Wife), 26-55 year old (husband)
3. No surviving child (biological, adopted or surrogate, mentally or physically challenged or fatally ill children not included)
4. Other conditions that may be specified by regulations

The reasoning given is that rampant commercialization of surrogacy is leading to exploitation of many women. India, especially, has become a hub with an industry worth $400 million and 3,000 fertility clinics (UN Study, 2012). but is this really a ‘medical bill’ or a ‘political bill’, remains a question. The bill shows puritanical inclinations with altruistic surrogacy remaining exclusive to heterosexual couples.

It shows discriminatory features on the basis of marital status and sexuality, repressing reproductive choices of individuals. Several questions need to be addressed like:

1. The reason for not having a common position on surrogacy as outlined in the Assisted Reproductive Technology (Regulation) Bill-2017, and for not having an integrated approach towards the use of assisted reproductive technologies in India.
2. As per the definition of “infertility”, the bill excludes the woman who may conceive but is unable to carry a child through the period of the pregnancy due to numerous reasons that affect successful pregnancies. In some of the other that allow altruistic surrogacy, the medical conditions need to be broader and well defined.
3. The bill includes a sub-clause for National Surrogacy Board to define ‘any other condition or disease’ for which surrogacy may be allowed. For a robust implementation, this should not be left to regulations but be made a part of the parent law.
4. A part of the certificate of essentiality in the bill outlines the following conditions: a certificate of proven infertility of one or both members of the intending couple from a District Medical Board; (ii) an order of parentage and custody of the surrogate child passed by a Magistrate’s court. However, the bill lacks any review or appeal procedure if an application is rejected.
5. An eligibility criterion for a surrogate mother is to be a “close relative” of the intending couple. However, the term is not defined, nor is the nature of this relationship. On the one hand, it provides the intending couple widespread choices, but on the other, it may also be subjected to perceptional scrutiny by authorities.
6. Another eligibility criterion that specifies that the couple should be Indian citizens and married for at least five years, restricts the couple’s ability to decide the family size. Once the infertility is established, why must a couple wait for five years?
7. The criterion “have not been a surrogate mother earlier” cannot be monitored until there is a centralized system to record pregnancies.
8. Imposing ‘altruistic surrogacy’ carries an assumption that it cannot be exploitative or coercive. With commercial surrogacy, there is at least an option for stringent contract and legal provisions, but monitoring altruistic surrogacy will be difficult. Families can exploit women and coerce them to surrogate for close relatives

Around 15 percent reproductive-aged couples are affected by infertility. According to the World Health Ogranisation(WHO), primary infertility in India is between 3.9 to 16.8 percent. It differs further among states. For instance, Uttar Pradesh, Himachal Pradesh and Maharashtra — 3.7 percent, Andhra Pradesh — 5 percent and Kashmir — 15 percent. The data implies that there is a big population that might want to avail to surrogacy, but the bill renders it inaccessible to many of them. While adoption availability is posed as an argument, how people choose to procreate is not a question the State should be deciding for the populace.

On another nexus, while altruistic surrogacy is legal in India, it is either banned or has negligible regulation in most neighbouring nations. It has been reported that Indian women have been extensively traveling to Nepal. There are stricter visa guidelines for foreigners commissioning surrogacy in India. the Supreme Court in Nepal banned commercial surrogacy in the country in 2015.

The UN hasn’t highlighted or advocated the issue in a very informative manner yet. There is no normative standard or guidance on the issue of surrogacy as of now. The UN Special Rapporteur on the sale of children, child prostitution and child pornography has addressed the issue and highlighted the lack of regulation of commercial surrogacy. It called upon countries to adopt legislation to protect women and children’s rights, and the development and implementation of international standards.

It is true that most women who become surrogates come from disadvantageous backgrounds, renting their wombs is often an economic necessity for them. The effect on their livelihoods needs to be addressed too. 

There are several concerns related to the issue. These include prevention from coercion or exploitation, health and legal counselling about the implications on health and lives, informed consent, access to remuneration, nature of the relationship with the legal family of the child, among others. But how the bill will address these issues exactly is not stated.

Banning the practice will only lead to it going clandestine, if we truly want to stop exploitation, stronger regulation is the need. Violation of fundamental rights of women and seizing their control over their bodies can never be the solution.

(Neha Chauhan is Senior Technical Advisor, Advocacy and Accountability, International Planned Parenthood Federation, South Asia)