Law
This Bill has faced widespread criticism from activists, lawyers and women’s health groups, who have demanded that its problematic mandates and clauses be redrafted or removed.

It may be the season to be jolly, but the ongoing session of the Lok Sabha is making it very hard to feel that way. Two days after passing the Transgender Persons (Protection of Rights) Bill, the glaring problems of which are explored at length here, and while activists are simultaneously raising their voices against the Anti-Trafficking Bill 2018, the Lok Sabha on Wednesday passed the problematic and damaging Surrogacy (Regulation) Bill. Both of this week's bills were passed amidst “noisy protests”, “disruptions” and “uproar” by MPs in Parliament over completely unrelated political issues, like the Rafale deal and Cauvery water dispute. 

The Surrogacy (Regulation) Bill (hereinafter simply referred to as the Surrogacy Bill), disallows “commercial surrogacy”, where a surrogate mother would be paid for her services, and only legally permits “altruistic surrogacy”, where the surrogate mother must be a close female relative of either of two partners in a heterosexual marriage, and cannot receive any payment for her services. It also bars foreign nationals from using Indian surrogates. This Bill was ostensibly passed to prevent the exploitation of “poor” women. 

This Bill has faced widespread criticism from activists, lawyers and women’s health groups, who have demanded that its problematic mandates and clauses be redrafted or removed. Much like the Transgender Protection Bill, most of these crucial recommendations and suggestions have been ignored, and the Bills passed in the Lok Sabha without addressing these issues.

So, what are some of the crucial aspects of this Surrogacy Bill? 

Ban on commercial surrogacy in favour of “altruistic surrogacy”

The most important aspect of this Bill is that it bans “commercial surrogacy”, which means that women can no longer be paid for undertaking the work of surrogacy. It only allows a “close relative” of the married couple to undertake “altruistic surrogacy”, but it does not define who all your “close relatives” are. 

But as feminist activist Chayanika Shah posted on Facebook in the aftermath of the Bill being passed, the usage of the word “altruistic” itself should ring alarm bells. In her post, she writes sarcastically, “Child bearing is such a noble cause that women should do it not only for their husbands but also for all eligible close relatives chosen and screened by the state! Such altruism is what becomes being a woman. How dare they ask for money to do this pious task? How dare they risk their health and do the labour and get paid in return?”

Speaking to TNM, she elucidated what she meant. “I personally feel that surrogacy is a form of reproductive labour, and it’s better to be compensated economically for it. 'Altruistic surrogacy' makes it sound as if she’ll do it out of her good-naturedness or good-heartedness, and it’s unfair to make women do this. If someone has to be a surrogate, let them be paid for it.” 

When asked about the argument that this Bill is designed to protect “poor” surrogate mothers from being exploited, she says that we must learn from how the experiences and demands of sex workers have enriched the discourse.

“We have heard from poor women, we have heard from sex workers, that the work gets exploitative. So address the exploitation, not the work itself! When women do back-breaking labour in the sun, that is exploitative, manual scavenging, that is exploitative. Sex workers have taught us this: if a woman finds that this [sex work or surrogacy] is a preferable option to the other options available to them, then allow for that work to be done with dignity. If you want to protect the “poor woman”, improve her work conditions, make the process safe and secure for her, improve the terms of her contract for her.” 

As an urgent call for action sent out on Wednesday by the women’s health group Sama pointed out, even a Parliamentary Standing Committee tasked with reviewing and providing suggestions on the Surrogacy Bill had made similar observations. 

The 102nd Parliamentary Report submitted by the Standing Committee to the Rajya Sabha in August 2017 states that “there is no doubt that as of today there is a potential for exploitation and the surrogacy model that exists today can and does exploit surrogate women. But this potential for exploitation is linked to the lack of regulatory oversight and lack of legal protection to the surrogate and can be minimized through adequate legislative norm-setting and robust regulatory oversight.” 

Meaning, the onus should be on the government to regulate and make safe the working conditions of surrogate mothers, as opposed to banning the work of commercial surrogacy in toto and expecting it to be done out of the goodness of a woman’s heart for free.

Sarojini, the director of Sama, also expressed this view in an email response to our questions, stating that “there is an urgent need to regulate surrogacy industry, but it should be comprehensive.”

Interestingly, the Standing Committee's report accepts that surrogate mothers “engaged themselves in surrogacy out of economic necessity and saw surrogacy as a means of economically uplifting their families” and that “surprisingly, their other economic options were equally, if not more, exploitative and nowhere close to being as remunerative as surrogacy.” [emphasis ours]

The report also brought out some other important observations, reflected by feminist organisations working in the field. The report makes a compelling argument against the use of the term “altruistic” surrogacy, and the very practice of “altruistic pregnancy” involving no compensation whatsoever, thus: “in the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny.”

It further states that “expecting a woman, that too, a close relative to be altruistic enough to become a surrogate and endure all hardships of the surrogacy procedure in the pregnancy period and post partum period is tantamount to another form of exploitation.” [emphasis ours] Casually dismissing the real toll that this process can take on women, and expecting women to do it out of some kind of womanly kindness, writes away the value of women’s work and labour, in favour of arbitrary moral platitudes on motherhood and selflessness. 

The report, like feminist and women’s health organisations, recommended that surrogate mothers be paid for their services, and that the process be called "compensated surrogacy". Some organisations, including Sama, have pointed out the flaws in the Standing Committee’s idea of merely referring to it as “compensated surrogacy” without detailing the amount of compensation or deciding who will pay it. However, all these experts, unlike our Parliamentarians who pass crucial Bills while arguing about unrelated issues in the background, agree that women should be paid for this work. 

As several have pointed out, such a ban will not really end the practice of commercial surrogacy, but merely take it underground, making conditions even more unsafe for surrogate mothers. 

Flies in the face of right to privacy judgement

The verbiage of this Bill, its definition of marriage and the kind of couples eligible for surrogacy, and some of the other conditions it imposes, also fly directly in the face of the meaning and spirit of the Right to Privacy judgement, and the fundamental rights of prospective parents. In the Right to Privacy judgement, Justice Chandrachud wrote, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation […] Privacy also connotes a right to be left alone.”

The newly passed Surrogacy Bill, on the other hand, defines a “couple” as “the legally married Indian man and woman above the age of 21 years and 18 years respectively”, and restricts the option of surrogacy to such couples only. Firstly, this completely bars single parents, gay and queer couples and unmarried, possible “live-in” couples (whose rights have been recognised by the Courts in other judgements) from the option of surrogacy altogether. 

As gender and sexuality rights researcher Ajita Banerjie points out to TNM, “in passing Bills like this, and the regressive Transgender Persons Protection Bill, and the Anti-Trafficking Bill 2018, the State is acting like a patriarch, deciding what is good and bad, despite the people being given their rights [to privacy and all that it encompasses] by the Supreme Court recently.”

The Bill places further restrictions on heterosexual couples as well. In order to be eligible for surrogacy, the heterosexual, married couple needs “a certificate of proven infertility in favour of either or both members of the intending couple from a District Medical Board.” As Ajita says, the requirement of such a certificate is violative of the couple’s right to privacy, and furthermore, stating that only an infertile couple can opt for surrogacy is inherently moralistic. 

It places further, even more arbitrary regulations on heterosexual couples, including that the couple intending to adopt the child must consist of a female between 23 and 50 years, and a male between 26 to 55 years, and that the couple must have been married for at least five years before opting for surrogacy. It provides no explanations for these arbitrary requirements, and is a blatant contradiction of the Supreme Court’s verdict giving citizens a right to privacy and the freedom to make their own decisions, including in matters of “family life and procreation”. 

Purity of the family and maintenance of regressive values

The definition of a family as a heterosexual unit, an implied suggestion that fathers should be older than mothers (through the varying age restrictions for men and women) and necessitating that the surrogate mother be a close relative, also point to the fact that this Bill is based on regressive values and an adherence to the idea of maintaining the “purity” of the traditional family unit. 

As Ajita explains to TNM, “these definitions deliberately push out same-sex couples, single parents, transgender persons and others from opting for surrogacy, and reflect the hetero-patriarchal mindset of the State. The conditions of the Bill will also exclude inter-faith and inter-caste couples who don't have their families' support from opting for surrogacy. Even after progressive, landmark judgments in Navtej Singh Johar vs Union of India [the section 377 judgement] and NALSA vs Union of India [which granted the right to gender self-identification] - the normative definition of family and the essentialization of marriage [to a purely heterosexual definition] in this Bill excludes same-sex couples, and people in a civil partnership or a live-in relationship."

With this Bill, couples who for other reasons don’t have close female relatives of child-bearing age, will also be arbitrarily barred from surrogacy. 

Chayanika further explains some of complexities involved. "If the issue was just about a childless couple getting a child, it would be conducted in a different way. This whole Bill is framed in a way that looks to preserve the 'purity' of the family. First of all, the surrogate mother has to be married. Then, she has to necessarily not give any of her biological material, no gametes, to the child, which means her egg cannot be used. Now of course, the surrogate mother has her own eggs, which can easily produce her child with sperm that is someone else's. But because they don't want the child to be connected by genetics to the surrogate mother, they're saying she has to go through a whole complex technological procedure of having a “test tube baby” when she does not really need it, when she can just use someone’s sperm and get pregnant. This Bill disallows that process, because the whole idea is about purity of family. They want “proper, married couple”, their real egg, and their real sperm to produce this child. And then they want the surrogate mother to be from within the family also, an environment close to your community and caste. It’s reinforcing hetero-patriarchy in so many different ways using technology, and removes every single possibility of [social, biological and political] subversion that surrogacy once presented.”

She also reiterates that the rules in this Bill only use the excuse of “protecting” women who may be “exploited” by surrogacy, while doing nothing to actually curb the exploitation. 

“If her body is being exploited because her egg is not being used, we don't address that, because then they think she won’t give the child away. Then let the child stay with her. How can you make a compulsory certificate on which the commissioning couple’s name will appear; why can’t she be the parent and they do the due process of adoption? These are the real questions to ask. This whole way of going about surrogacy is to protect the “original, married unit”. There’s no control on them if something happens to her. How are they going to compensate her, say, if she gets cancer two years later because of all the drugs and treatment that this kind of surrogacy process involves?”

As Sarojini points out, “Safeguarding the rights of women who act as surrogates in India is much broader than just remuneration for surrogacy. It includes women’s ability to make informed decisions regarding intrusive technological interventions in their bodies, their reproductive autonomy, their right to health, and control over their reproduction.

Other concerns

This Bill also arbitrarily states that surrogate mothers can undergo the process of surrogacy only once, ostensibly to protect the health of surrogate mothers, while placing no such restrictions or caps on mothers undergoing IVF themselves. It provides no explanation for this discrepancy. 

An issue that remains unaddressed in this Bill is another concern highlighted by the Parliamentary Standing Committee. Firstly, in many families and in most parts of India, it would be highly unusual for women in the same families to volunteer to become surrogates for their own family members, and secondly, given the patriarchal structures that prevail in India today, with the option of commercial surrogacy being totally removed, the likelihood of women being forced by family members to undergo surrogacy could increase. 

As Ajita mentions, it’s important not to look at this Bill in isolation, but to look at the three damaging Bills that have already been passed by the Lok Sabha recently and that are now set to be placed before the Rajya Sabha — the Anti-Trafficking Bill, the Transgender Protection of Rights Bill and the Surrogacy Bill — together. What emerges is the frightening image of a regressive State, behaving like the classic patriarch, regulating the lives, bodies and behaviours of women and sexual minorities, at its own whim and fancy, pulling us steadily backwards towards regressive notions of what it means to be a free human being with rights and liberties in society today.