Nearly a year after the Union Cabinet cleared the draft Surrogacy (Regulation) Bill, 2016, the Parliamentary Standing Committee on Health and Family Welfare has pointed out several discrepancies in the draft Bill.
In a report tabled in the Rajya Sabha on Thursday, the Committee suggested several amendments to the draft Bill.
The Bill seeks to regulate commissioning surrogacy and safeguard the rights of surrogate mothers. It legalises altruistic surrogacy and prohibits commercial surrogacy with a view to prevent exploitation of women.
According to the Bill, those eligible for surrogacy will have to be "Indian, married and infertile". It thus excludes single people, foreigners, homosexual couples and those in live-in relationships from commissioning surrogacy in the country.
The Standing Committee in its 88-page report made some of the following observations.
Altruistic model unreasonable
The Committee observed that economic opportunities available to surrogates through their surrogacy services should not be dismissed in a paternalistic manner.
"Permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary," it said.
It argued that altruistic surgery has extreme expectations from a woman to be willing to be a surrogate just based on noble intentions and without any compensation. In a surrogacy procedure, the legal parents get a child, and other quarters such as the doctors, lawyers and hospital get paid. However, surrogate mothers, who put their lives at risk, are expected to do so completely out of compassion.
"Pregnancy is not a one-minute job but a labour of nine months with far reaching implications regarding her health, her time and her family," the Committee said.
Surrogate mothers who the Committee spoke with also mentioned that the reason they chose to be surrogates was they hailed from economically weaker sections and were in need of money.
While making a case for reasonable compensation, the Committee simultaneously also observed that surrogacy cannot be a way out for women opting for surrogacy due to poverty and that it should not be allowed as a profession. Many of the stakeholders suggested that these women be provided vocational training which will enable them to earn a livelihood.
The Bill also assumes that taking care of the medical and insurance coverage of the surrogate mother is enough. However, it forgets to take into account other expenses, such as the time she cannot go to work, counselling, child care expenses of her own child, post-delivery care, etc.
Only "close relatives" acting as surrogates could hurt women
According to the draft Bill, only "close relatives" of couples seeking children will be allowed to be surrogate mothers. Criticising this provision, the Committee said that since we live in a largely patriarchal society, women can be forced to become surrogates for another family member, and this could be exploitative in nature, thus beating the purpose of the Bill.
There is also a lot of stigma attached to infertility and impotence, and intending parents may not want to discuss their private issues with their relatives. Women especially are at a greater risk of domestic violence, abuse, name shaming and loss of respect if it is disclosed that they cannot bear a child.
Thirdly, if the surrogate mother is a close relative and share familial ties with the expecting parents, it is likely that the former could develop emotional attachment to the surrogate child.
"The Committee, therefore, firmly believes that altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism," the report said.
Why only married heterosexual couples
While the draft Bill only allows married heterosexual couples to have children through surrogacy, various stakeholders who gave their inputs to the Committee were in support of allowing individuals who are single including unmarried, separated, widows, transgenders, single parents to exercise their right to parenthood.
Even the Supreme Court has recognised that couples in live-in relationships will be presumed to be legally married.
Stating that the proposed Bill fails to recognise the rights of live-in partners to surrogacy in an unreasonable and discriminatory manner, the report said, "Restricting it to only Indian married couples is discriminatory and violative of the right to life, personal liberty, reproductive autonomy and right to equality guaranteed to all persons under the Constitution of India."
The Committee also notes that a lot of people are getting married in their 30’s and 40’s and the requirement of five year wait would adversely affect the quality of their gametes and thus impair their chances of attaining parenthood through surrogacy.
Five-year waiting period unreasonable
Under the proposed law, couples who have been trying to conceive for a period of at least five years without any positive results will be considered for surrogacy.
However, the Committee stated that the five-year term is unreasonable.
"Besides," the report said, "this time bar of five years plausibly violates the right to reproductive autonomy, and an individual’s right to exercise his choice".
Should foreigners be allowed?
With a view to prevent exploitation of women, especially those from rural and tribal areas, the Bill prohibits foreigners from commissioning surrogacy in the country.
The Committee too in its report observed that foreigners often come to India for commissioning surrogacy because the procedure is much cheaper here.
"Surrogacy is a privilege and cannot be extended to foreign nationals indiscriminately," the report stated.
A welcome move
When the Bill was cleared by the Cabinet last year, it was initially hailed as a step forward after years of having an unregulated surrogacy industry.
However, it was later criticized by several quarters for its narrow ambit, such as excluding everyone but married childless couples, a blanket ban on commercial surrogacy and the five-year wait period.
Author of Baby Makers: The Story of Indian Surrogacy Gita Aravamudan, who had earlier then called the Bill flawed, welcomed the suggestions made by the Committee.
"All the recommendations made by the Committee are good provided they are accepted," she said.
"It’s good that they observed that commercial surrogacy should not be banned totally. In terms of altruistic surrogacy, it is okay provided people get into it knowing fully what the implications are. But we cannot say that only altruistic surrogacy should be allowed because that is when it will lead to women being forced," she added.