In 2018, Hyderabad police arrested a 64-year-old man for harassing a woman he had hired to be the surrogate mother of his future child. In 2019, police arrested a woman and a doctor in Alipore allegedly involved in a surrogacy racket. Likewise, In the year 2018-19, police around the country registered several incidents of harassment and violence against surrogate mothers, each of which heightened the need for a safe law regulating surrogacy in India, especially to to protect the rights of parents and surrogate mothers.
The first such document was prepared in 2016 after multiple reports of women being confined to hostels, not being provided adequate post-pregnancy medical care and often paid a pittance for repeatedly becoming surrogate mothers to supplement their family incomes. On February 26, 2020, the Union cabinet approved recommendations by the Select Committee on Surrogacy (Regulation) Bill, 2020, peopled by 23 members of the Rajya Sabha. The amended Bill is a reformed version of the draft legislation passed by the Lok Sabha in August 2019. Many of the latter’s provisions, including that only a close relative of a couple could be a surrogate mother, had invited criticism.
To understand the Bill, it is important to understand the idea behind framing a new set of rules for allowing altruistic surrogacy in India.
Surrogacy is the practice whereby a woman gestates and gives birth to a child for an intending couple. In India, the demand for surrogacy has been on the rise thanks to parents’ advanced age, uterine problems, pelvic tuberculosis, infections, etc. In rural areas, people often get married quite early and getting pregnant is often the first step after marriage; they also generally don’t plan childbirths.
The previous draft of the Bill, of 2019, defined commercial surrogacy as surrogacy or its related procedures undertaken for monetary benefits or rewards exceeding basic medical expenses and insurance coverage. India is one of few countries that has allowed commercial surrogacy for a long period of time, apart from Russia, Ukraine and some states in the US. The amendments prohibit commercial surrogacy, including the sale and purchase of human embryos and gametes. On the flip side, they allow ethical surrogacy to Indian married couples, Indian-origin married couples (i.e. both partners of Indian origin) and widows or divorcees between the ages of 35 and 45, upon the fulfilment of certain conditions.
Additionally, a “willing woman” and not just a “close relative” can become a surrogate mother, and widows divorcees can also benefit from the Bill’s provisions, apart from Indian couples. One reason for this shift is that families are become smaller, making it harder for couples to find somebody among close enough among their relatives to be a surrogate. So the Bill also allows altruistic surrogacy, where there is no element of coercion and a surrogate agrees to be one in the spirit of helping somebody.
The Bill also allows the person using a surrogate mother to pay only for her medical expenses to reduce opportunities for commerce. The proposed insurance cover for surrogate mothers has been increased to 36 months from 16 months. Finally, the new draft proposes to regulate surrogacy through a new National Surrogacy Board at the Centre, a State Surrogacy Board in each state, and appropriate authorities in the union territories.
However, the Bill is not perfect. For example, its definition of ‘infertility’ as the inability to conceive after five years of unprotected intercourse should be deleted because half a decade is too long a period for a couple to wait for a child. Second, the new Bill is silent on the right to parenthood of LGBTQ+ couples, and only extends the right to surrogacy to heterosexual couples and/or single women who are unable to have children. Third, experts have also rightly criticised the absence of monetary compensation for surrogate mothers. Not many women are likely to be interested in carrying someone else’s child without being paid for it.
Now that the cabinet has approved the Select Committee’s recommendations, it should establish surrogate clinics for mothers at the district level, with a female medical practitioner appointed full-time. Surrogacy is a boon for women who are looking to make ends meet and are biologically fit, and the government should take every measure to facilitate this option safely and with dignity. It’s high time we adopted a more liberal view on the issues of reproductive rights of women, including medical termination of pregnancies, assisted reproductive technologies and surrogacy.
Sarvesh Kumar Shahi is an assistant professor of law at KIIT University, Bhubaneshwar, and visiting faculty at the National Law University, Nagpur.