India’s stance on surrogacy is on a slippery slope, which the government and courts alike seem to be hesitant to address. In our country, surrogacy is seen through the lens of either the poor and uneducated women or the elite classes. This unequivocally creates a constant discrepancy between the two, as there is no rational middle ground that has been met by the two stakeholders. On one end of the spectrum is the state and its duty to prevent exploitation and protection of interests of the child born through surrogacy and on the other hand are the rights of women to livelihood, to bodily autonomy, and right to choose of reproductive practices. And in all this chaos between the two, we seem to overlook the fact that everyone has the right to choose whether they want to be a parent or not.
The two Acts, which address surrogacy in India are the Surrogacy Regulation Act and the Assistive Reproductive Technology Act both of which came into force in the year 2022. Some Questions, which are addressed under the Act, are, who is eligible to serve as a surrogate?
And who is eligible to avail the option of surrogacy? The Act also addresses the offences that fall under its purview.
The Surrogacy Regulation Act of 2021 states that “no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise.” Moreover only altruistic surgery is permitted wherein “no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed 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.” While the state’s objectives in this case are intrinsically noble, we cannot ignore the fact that it has erred in certain areas.
The state prevents surrogates from exercising their rights while ostensibly protecting them from being exploited. It is assumed that the exploitation of surrogate mothers will inevitably cease once the commercial aspect is removed. In a country like India, where the institution of the family is prioritized above all and the grim reality is that patriarchy is highly prevalent, women have little or no influence on the functioning and the decision-making in the family. And who is to predict if relatives of the couple requiring surrogacy won’t’ be coerced into being their surrogate labor due to familial obligations and insistence? What the current laws fail to address is the fact that various unemployed and underprivileged women are being kept from an avenue that will be monetarily beneficial to them in the absence of other opportunities. Don’t these women have a right to an income? Doesn’t the current law take away their right to livelihood? Why is being a surrogate seen as illegal as long as it’s consensual? Why should women, be it a relative carry a child, go through labor knowing what a toll it will take on their body solely due to their thorough kindness of heart? Why won’t these relatives be given some compensation as well?
Commercial surrogacy must be regulated, and commercial surrogacy practices must be closely monitored, but criminalizing it does not alleviate the issue at hand.
The Surrogacy Regulation Act 2021 states that couples can avail surrogacy if “the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification; (II) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier.” There are some exceptions made for couples who have a child who suffers through a life-threatening disease, or physical or mental disease.
This is very problematic in a variety of circumstances. Single parents who want to start a family but don’t feel they need to get married are barred from using surrogacy. Despite the decriminalization of Article 377 by the Supreme Court, same-sex couples who are biologically incapable of having children of their own are not permitted to use surrogacy. Another issue is why a couple who lives together should be denied the opportunity to have children simply because they are not married. Single women can only avail surrogacy if she is a widow or divorced. The question of women’s right to their bodily autonomy and reproductive rights comes into play again. Why should a couple biologically incapable of bearing children be the only one permitted to utilize the option of surrogacy? Does a woman not have the right to choose if she wants to go through pregnancy to have a child? How can the state overlook the tedious and exhausting process of pregnancy and the toll it takes on a woman’s body? By restricting a woman’s ability to use surrogacy, the state also restricts her ability to earn a living, pursue a career, and her right to livelihood and profession. To have a child, a woman must sacrifice some aspects of her career, and it is unknown whether these professional avenues will still be available to her after giving birth since she becomes incapable of working during certain stages of her pregnancy. Every citizen in the country has the fundamental right to be a parent and at the same time has the right to choose not to be as well and the same has to be protected by the state.
Unfortunately much like India, most countries all over the world have a rather peculiar and unclear stance on laws of surrogacy. Most European countries like France, Spain and Portugal, etc. outlaw surrogacy. The United States has no federal laws about surrogacy and laws differ from state to state, hence making them inconsistent. Even though certain countries like Ukraine allow commercial surrogacy, inter-sex couples and unmarried couples are still not given their right to be parents through this method. Perhaps all of us collectively as a community should give thought to our pre-conceived notions about society and surrogacy and raise awareness to change these unreasonable laws.
India prides itself on being a revolutionary developing country and the “pillar of democracy.” But if we don’t make sure that fundamental rights like equality are upheld in their purest form, achieving full development will remain a pipe dream. While on the one hand citizens in our country are shifting from more traditional, patriarchal values to more contemporary, egalitarian perceptions. On the other hand, we still see our legislators stuck on centuries-old beliefs and customs. We must attempt to approach these laws from a rights-based perspective rather than a needs-based perspective. As rightly pointed out by Delhi based lawyer Sankriti Taneja,“The current regulations are contentious and hurt the very women the seek to protect. And any time the law overstretches itself by brushing aside rights of stakeholders, it invariably creates a thriving grey market for the very services it seeks to regulate”. If society and lawmakers alike do not make an effort to adopt a more liberal and forward-looking perspective when it comes to surrogacy laws, these laws will forever be a significant stain on India’s otherwise valued history.
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