The Union Cabinet gave its nod to The Surrogacy (Regulation) Bill on 5 August 2019. The central tenet to ethical law-making in a democracy should be to hold an individual's autonomy sacrosanct. Overarching commitment to valuepluralism make that a tricky business for policy-development, as is the case with the Surrogacy Bill.
Legalised in India in 2002 to promote medical tourism, surrogacy grew to a sizable $2 Billion industry by 2012. Through Surrogacy Bill, the state justifies its intrusion in the sector by citing harassment and misuse of women for surrogacy; and, legal complications/custody battles that may arise by allowing access to surrogacy outside a marriage. The 2019 Bill makes sweeping amendments in the sector and forbids commercial surrogacy, only allowing for altruistic surrogacy.
The Surrogacy Bill 2019 mandates: that the intending parents must be Indian, married for at least five years, heterosexual, and must not have any surviving child biologically or through adoption or surrogacy, unless terminally ill or mentally disabled; one or both parents must be certified infertile; the surrogate mother must be a close relative, who is authorised to act as a surrogate only once in her lifetime; the surrogate must be an ever-married woman with a biological child of her own, and must be between the age of 25- 35; the surrogate must indulge in altruistic surrogacy with no monetary compensation apart from medical expenses and insurance cover; both the intending parents and surrogate mother need 'certificate of essentiality' and a 'certificate of eligibility' from the government-appointed authority under the act.
The Bill further states, "Due to lack of legislation to regulate surrogacy, the practise of surrogacy has been misused by surrogacy clinics, which leads to rampant commercial surrogacy and unethical practices…". The government's intent to have carte blanche control over surrogacy industry is misinformed. Evidenced in other countries, when regulations restricting surrogacy are imposed, the activity goes underground, with pregnant surrogates being taken to other countries for deliveries. It exposes surrogates to greater risks leaving them vulnerable to exploitation.
The legal caveat
The Bill is in direct violation of reproductive rights, guaranteed as part of the right to life under the Constitution of India. A bill that allows surrogacy only for married heterosexual couples, in effect criminalises the reproductive rights of LGBTQ, single/divorced, live-in couples, or widowers. This directly violates the right to equality before the law under Article 14, by treating equals unequally. Infringing on Article 21 of the Indian constitution, the Bill also violates the privacy of the intended couple, by forcing them to declare their infertility to the government. Similar concerns arise for the surrogate, who will now have to disclose her identity and marital status. It also puts psychological pressure on the intended couples given the societal stigma attached to impotence and infertility.
The Bill disregards the potency of the Law of Contract to enforce the rights of a surrogate. Breaching Article 19(1)(g) of the Constitution of India, it prohibits women's right to earn a livelihood by wilfully serving as surrogates and instead forces them to dole out their reproductive labour free of cost. This dismissive view will leave surrogates open to further commodification, facing coercive moral pressure from their families to lease out their womb for the greater good of the family unit, adding to their subjugation.
The question of autonomy
The Bill leaves scope for government overreach and misinterpretation of the law when it fails to delineate what constitutes a 'close relative'. The condition of proven five years of infertility further adds to the trauma. Why does an infertile couple need to wait five years to apply for such eligibility certification in the first place? The Bill also specifies that the intending infertile Indian married couple must be between the age of 23-50 years and 26-55 years for female and male respectively, to seek a surrogate. The upper age-limit clause is government deciding the appropriate age for a couple to become parents.
The Surrogacy Bill, 2019 also provides for constitution of surrogacy boards at national and state levels. These boards will be authorised to issue the prerequisite 'certificate of essentiality' and 'certificate of eligibility' to the intended couples and potential surrogates. Such discriminating and draconian conditions further erode the autonomy of prospective parents.
The Bill is an example of mistakes clubbing together to create blunders. Laws that ban behaviour based on moral arguments, shift the responsibility from the law to the individual. They seek to build a fence around moral and civic virtues to prevent the encroachment of economic values they deem profiteering. Similarly, this bill neglects various aspects of personal autonomy, creating guidelines that are removed from meeting the fair, just, and reasonable standards to consider its constitutional validity.
The Bill's thrust on ostensible paternalism rather than substantive protection of autonomy is another example of government's meddling leading to an increase in the social, legal and psychological impediments for its citizens. How does a government that requires surrogates to be altruistic, allows for paid sperm donation? How does it allow for adoption by single parents but surrogacy for them is banned? Why does it get to decide what women do with their bodies? How is surrogacy deemed illegal when done for money, but legal when done for free? Is government the official gatekeeper of morality for its electorate?
A woman's reproductive right is as unalienable right connected to all other constitutional rights. A law superseding that right puts the country back by many years.