Despite frequent disruptions, the Lok Sabha on Wednesday passed the Surrogacy (Regulation) Bill, 2016, which bans commercial surrogacy in India.
This is the culmination of a process that began in 2009, when the Law Commission of India in its 229th report recommended a prohibition on commercial surrogacy, a procedure by which a woman accepts a fee to carry an embryo to term for another couple. The statement and objects of the law declared that India had become a hub for commercial surrogacy and several incidents of women being exploited had come to light. The law seeks to end such exploitation and regulate non-commercial or “altruistic surrogacy”.
The law bans women from accepting payment to become surrogates. The Bill says no money can be paid except “the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother”. The surrogate must be a “close relative” of the couple.
Over the years, the proposal to ban commercial surrogacy has sparked heated, divisive discussions. Opponents of the ban contend that in a country like India, an outright prohibition of commercial surrogacy will only push the business underground, into the black market. This, they say, will only lead to women being exploited even more. But proponents of the ban cite the bioethical problems of allowing commercial surrogacy, which treats a woman’s body like a commodity in the marketplace.
While the Law Commission sought a ban, a Parliamentary committee that analysed the Bill opposed an outright ban and called the government’s attempts too “moralistic”. It robs women of their choice and denies them financial benefits that could help their own families.
Ethical questions aside, the complexity of the Bill has also come under severe criticism. First, the Bill reinforces archaic ideas of familial relationships. It mandates that only “close relatives” can become surrogate mothers, forgetting that inequality plays its part within families and keeping the transaction within the family fold may not mean that the surrogate has made a free choice.
Second, the law prohibits homosexual couples from commissioning surrogates, mandating that the couple should be a man and a woman who have been married for at least 5 years. This is out of tune with other developments in constitutional jurisprudence over the past few years, including the decriminalisation of homosexuality by the Supreme Court in September. Though homosexual marriages are still unrecognised in India, this Bill points to the discrimination against people who are not heterosexual.
The Bill puts in place a bureaucratic web that has the potential to become an exploitative tool in itself. Even filing cases against violations requires some form of bureaucratic consent. There is also the problem of that the regulations do not align with international laws, given that many prosperous countries continue to allow commercial surrogacy. This means that clinics and agents will be tempted to use illegal methods to meet the demand of clients. Also curious is the provision to give women who offer commercial surrogacy the same punishment as agents and clinics – 10 years in jail.
While the aim of protecting women against exploitation is a noble one, the Bill passed by the Lok Sabha has many flaws and requires to be seriously reconsidered.