Surrogacy Bill 2016: Much Needed Reform Comes, but in Regressive Form

The Surrogacy (Regulation) Bill, 2016, that was passed in Lok Sabha recently, very clearly dictates who can, and who cannot become a surrogate mother. According to the Bill, only heterosexual couples, who have been married for at least five years, and have been medically certified as infertile, are allowed to opt for surrogacy.

The bill bans commercial surrogacy, and allows only altruistic surrogacy, which it defines as, “The surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.”

The draft law has a provision of imprisonment up to 10 years along with a heavy fine, in order to curb unethical practices, abandonment of children born out of surrogacy, exploitation of surrogate mothers, and trafficking of women for surrogacy.  This attempt to curb exploitations against women could have been a welcome move, if the parameters set by the Bill weren't so regressive.

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Exclusionary Nature of the Bill

The Bill, by saying that only legally married couples that have been medically proven infertile can opt for surrogacy, excludes single people, same-sex couples, and live-in couples. Hence, people are barred from opting for surrogacy on the basis of their sexuality, marital status, and gender identity.

Talking to NewsClick, N. Sarojini, the founder of women’s health group Sama, said, “Section 2(g) defines “couple” as the legally married Indian man and woman above the age of 21 years and 18 years, respectively. Restricting it only to married heterosexual couples is discriminatory and violative of the right to life and right to equality guaranteed to all persons under Articles 21 and 14 of the Constitution of India. The Surrogacy (Regulation) Bill 2016 denies surrogacy to single, unmarried, queer and couples in a live-in relationship. The Supreme Court of India, very recently, had ruled that ‘in the modern time, live-in relationship has become an acceptable norm. It is not a crime’. Even the children that are born to such couples are accepted as legitimate under the law.”

By allowing only ‘altruistic’ surrogacy, the Bill makes certain assumptions and generalisations about the role of women in the society. By barring the provision of any financial remuneration, the Bill undermines, if not completely negates, the reproductive labour put in by the surrogate mother. Its definition of ‘altruistic surrogacy’ reinforces the traditional idea of a family where women are selfless nurturers by nature.  It assumes that women naturally will have the instincts to perform their services as a surrogate mother purely for love.

Section 4 (iii) (b) (II) of the Bill stipulates that "no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act". Mentioning this, Sarojini said, “It must be borne in mind that, given the patriarchal and exploitative nature of families, women may be coerced into becoming surrogate mothers.” The Bill has not defined anywhere who can be considered a close relative, which can also be used as a tool for coercing women.

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Also, by allowing only a ‘close relative’ to be a surrogate mother, the Bill denies the right to have a child to couples who do not have a close family unit, family support, or family members who would be willing to support them by becoming a surrogate mother. In India, inter-caste and inter-faith couples are often shunned by their families for breaking societal norms. Going by the terms of the Bill, these couples will not be able to opt for surrogacy.

The Surrogacy (Regulation) Bill, 2016, does not only violate the Articles 14 and 21 of the Indian Constitution, it’s regressive nature also reinforces the moralistic notion of purity of the womb and family. It also takes away the rights and the bodily autonomy of women who might consensually want to become surrogate mothers.