The Surrogacy (Regulation) Bill

The Surrogacy (Regulation) Bill, now Act, garnered much scrutiny since it was first

presented in Lok Sabha in 2019. Upon being further recommended to a Select Committee and

being tabled again, the Bill was passed rather hastily, to put it mildly.

From the perspective of a still-growing economy, India's commercial surrogacy market

boomed post the 2002 legalization- a phenomenon not foreign to Southeast Asia. However,

due to rampant overuse and lack of legislation around the concept of commercial surrogacy,

various challenges arose- from the exploitation of surrogate mothers to their dire yet

unchecked living conditions. Thus, the need for legal protection was felt, and the Surrogacy

Act was supposed to be just it. However, the questions of congratulations versus

commiserations arose when the Bill was presented and turned into an Act quicker than the

assent or dissent was even formulated. Moreover, the Bill in itself had various glaring flaws

and, to some extent, may do more harm than good.

General Overview-

Before analyzing the Act on a section-wise basis, a general overview would be so- the Act is

exclusive and made for a heteronormative, patriarchal, and, to some extent, a utopian society.

It focuses sheerly on the ability to afford and accommodate, takes away autonomy, works on

the concept of heterosexual relationships, and limits the ambit of parenthood to just mothers.

Moreover, the issues are ethical and moral, for the Act, with all its good intentions, fails in

protecting the interest of exploited surrogates and providing a chance for parenthood to

childless parents.

Rampant Issues-

• Blanket Bans and Black Markets- It is a rather rose-colored view of the legislature, for the blanket ban has seldom given relief to the exploited without any checks and balances mechanisms in any part of the world. However, it indeed breeds way for black markets to rise. The more unchecked yet banned the practice of commercial surrogacy will be, the higher the chances of a nexus forming. Moreover, this black market would be worse than the current paradigm- with absolutely no legal recourses instead of being part of an illegal network; women may be coerced and subjugated to conditions worse than they may be facing now. Bans are not a solution unless the authorization is subsequent, which, historically speaking, has never worked out in India. The recourses available should be scrutinized as opposed to limiting the scope of the commercialization of surrogacy itself.

• Constitutionally Inconsistent and Inequalities- To consider it broadly, the blanket ban imposed by the Act on commercial surrogacy is a rather evident violation of Article 21 of the constitution, for the insurance of liberty is prohibited when the choice of profession is taken away. It vehemently also violates Article 14 of the Constitution, which guarantees equality before law. As expounded in the previous section, upon eliminating an entire stratum from the ambit of law, the essence of equality before law is nullified. Finally, it also is violative of the principle understanding of gender equality as under Article 15, since it clearly discriminates on the grounds of sex- wherein the choice of parenthood is available to single women but not, single men.Further dissecting the Act, the patriarchal backdrop becomes way more evident. The very definition clause of the Act rests heavily on orthodox ideologies when it limits the scope of an intending couple to a woman between the age of 23 to 50 and a man between 26 to 55 or an intending woman. The opportunity to avail surrogacy would be available just to either a heterosexual couple or a divorced/widowed woman. This takes away the opportunity for parenthood from single men, homosexual couples, and trans persons. Further, surrogacy can be availed only when a couple is infertile and takes away the power of choice. Some couples, especially women, may opt for surrogacy to prioritize their professional interests. This infertility further needs a waiting period of five years post marriage- which again is an arbitrary clause because the chances of a couple being aware of their infertility pre-marriage or within the initial few years of the marriage also exist. The Act also disregards children with disabilities, hinting toward the "childlessness" of couples with children with disabilities, for such couples are still permitted to avail of surrogacy services. Further, the Act never explains about infertility of just one parent and what possible recourses such a couple may have.

• Altruism and the Issues With It- The problem is not women choosing to enter into a commercial surrogacy contract but the legal lacunae which leave such surrogates open to exploitation and violation. Oftentimes, the women who volunteer to surrogate are not coerced into it, but rather to escape working in suffocating and often unhygienic conditions, opt for surrogacy. The object "coercion," as discussed in the Act, hints not just toward shackled autonomy but also towards a patriarchal backdrop. Further- what is the guarantee that this very coercion will not be extended to the "close relative" being preferred in the Act, for there is no option of involvement of a third party which may act as a surety in this case. The subject of "altruistic surrogacy" also forms a rather grim backdrop for the discussion. As simple and easy as it may sound to involve a close relative to be a surrogate mother, various complications may arise if the same contention is carried forward. The conditions implemented on the altruistic surrogate, according to the Act, implying that the woman must be- i) A close relative ii) Between the age of 25 to 35 iii) Ever married, with a child of her own However, the same conditions implemented are rather abysmal. Involving a close relative- the exact meaning of which the Act never specifies- in something which may be something a couple may choose to stay private about defeats the right to privacy in the first place. Apart from the violations, even the emotional aspect of this condition is rather taxing. Motherhood is a choice most women make, and rightly so- however, what needs to be acknowledged is the emotional bond between a mother and child. As per commercial surrogacy, the Act is on a contractual basis, a mere business transaction post which the mother loses all contact with the child. However, if a close relative is a surrogate mother, the chances of the mother and the child developing an attachment are relatively high. Therefore, they may further complicate relations instead of easing them. In addition, this surrogacy may create difficulties for the surrogate herself, wherein, owing to an orthodox and patriarchal mindset, she may be viewed differently and, most probably, negatively within her own family.

• Biological Lacunae -Suppose we remove the emotional perspective yet again. In that case, the age bar again limits the choice of various women who may choose to be a surrogate for their relatives merely because they are not within the age limit. Scientifically speaking, childbearing's biological and emotional maturity would be the same even if the age bar is increased. Moreover, this maturity is also subject to individual perspectives, and this limit is merely a myopic statutory provision. When read along with the age cap, the condition of being married and having a child of her own makes the entire situation even more absurd. Further, the other two conditions exhibit that a woman may be allowed to become a surrogate only once in her lifetime and that she will not be permitted to use her gametes. Indeed, the conditions inside the uterus may change with age, but that does not entirely justify not allowing women of higher age with healthy reproductive systems to act as surrogates. The Act further does not speak of infertile women who may wish for the gametes of the surrogate in question- thus essentially obliviating the two provisions in consonance with the initial three. -Protection and Payments Moreover, the issue of unpaid labor discussed- for the services offered are essentially "altruistic," a woman's right to earn is trampled upon even though she may rightly deserve remuneration but would have no legal window to demand the same. The insurance clause may be brought in, which provides an insurance cover for thirty-six months post-delivery. As reasonable of a period as this may seem, the Act does not provide provisions in case of any ailment that may be latent and caused due to pregnancy and arise post this limitation period. Further, the Act also speaks of a consent clause, where the surrogate may not withdraw from surrogacy post-implantation and yet, never really expounds upon any issue which may arise post-implantation and may be fatal to either the mother or the child. Even though the option of abortion exists, sadly, reproductive systems work not in just black and white. These unaddressed grey areas would create legal loopholes that would immensely impact the lives of surrogate mothers and the children born.

• Authorities and Delays- Lastly comes the issue of authorities. The Act may expound upon the creation of Surrogacy Boards within ninety days of its implementation, but clearly, no steps have been taken to further the same. Moreover, the stringent controls applied to surrogacy clinics pose a somewhat limited scope anyway. These delays and unnecessarily intrusive regulations would further delay the process of surrogacy for many couples who may plan their personal, professional timelines and family lives accordingly.

Conclusion- In conclusion, the Act was bought forth with good intentions but formulated with a myopic mindset. Unfortunately, the same has permeated the actual document and is now prevalent.

Therefore, there needs to be an exhaustive revamp of the Act. The necessary amendments need to be implemented as soon as possible to avoid any further complications that will aggravate the situation. The issue is not with commercialization or the choice and liberty of women. However, the lack of regulation and protection granted and the subsequent mindset is the actual plague. Thus, imposing blanket restrictions with short-sighted goals would fall short on benefits, benefitting none yet harming all.