Like every other service or product, that caters to the people with power, surrogacy to is also believed to be exploited by the rich or people in power. Surrogacy is known as the process of bearing and delivering a child to another person. Some even term it as ‘renting of the womb.’ Surrogacy consists of different ethical, medical, and societal challenges. In the landmark verdict of Baby Manji Yamada v. Union of India, the Apex Court clarified surrogacy and held that it is legal in India.
However, elements such as commercial surrogacy have been unregulated, which is considered the root cause of surrogacy problems in India. The main dispute here is between two mothers, the fulfillment of being a parent to one mother, and emotional attachment with the child for the surrogate mother. Emotional attachment cannot be calculated or guarded by some law. There are high chances of women with no stable income being exploited by people with authority. There are also questions about the uncertainty and inconsistency in the nurturing of the child. The intending parents often abandon children born with inborn physical or mental disabilities like Down’s Syndrome.
The Surrogacy (Regulation) Act primarily proposes to allow legal surrogacy to infertile Indian couples who are married and belong to the age group of 23 to 50 for women and 26 to 55 for men. Section 2 of the Bill deals with defining various terms such as ”altruistic surrogacy”, ”commercial surrogacy”, and ”intending woman.’ The section also prohibits ”Compensatory Surrogacy” as it has led to the commercialization of surrogacy.
However, we can see loopholes and a lack of inclusiveness in the bill as it allows only a married heterosexual couple, a woman above the age of marriage, to use ARTs. It excludes single men, LGBTQ+ individuals, and couples from accessing ARTs. Similarly, it has fewer to no exclusive provisions for people who belong to the marginalized community. Surrogacy is still limited to the privileged group of people who can afford the cost of the procedure. Some reforms need to be addressed in the bill so that it is an exemplary bill that even other countries can refer to.
As per the case of Consumer Education and Research Center and others v. Union as well as under Article 21 of the Constitution of India, there is provision for the expression of life, which includes the ‘Right to livelihood.’ But this right of livelihood of an individual is violated by the Surrogacy Act. It puts an absolute ban on commercial surrogacy, a means of livelihood for many low-income Indian women. It means that these women who saw a way to benefit from the system that usually caters to the privileged will have to find ways to struggle and generate income. In contrast, people who have power over the authorities will get their way through this.
Banning commercial surrogacy is not directly proportional to the decrease in demand; rather, it creates a new parallel where the practice will take place illegally. A surrogate earns around 10 to 12 lakhs by bearing a child; revoking the monetary interest part of the concept will only force people to resort to illegal options. The ‘altruistic model’ of the bill further fosters forced labor as it is wrong to assume that all surrogate mothers bear the child out of compassion. Therefore, to tackle this problem, the concept of ‘compensatory surrogacy’ must be put in place. It compensates for the loss faced by the surrogate mother in terms of fitness, wages, suffering, death, etc.
Commercialization of Surrogacy in India
The commercial surrogacy industry has been plagued by scandals, exploitation, and abuse since its inception in the late 1970s. From the infamous “Kid M” case, in which the mother changed her mind and had to hand back her baby in tears, to the Japanese millionaire who ordered 16 children from several Thai clinics. Human life has been completely commodified: click, select race, and eye color, pay, and your child will be delivered. The presence of women with significant degrees of socioeconomic vulnerability, as well as a serious lack or insufficiency of legislative regulation, are two of the main characteristics that favor the sector. As a result, surrogacy has transcended national lines and has become a transnational industry that mirrors the situation in other industries, where demand is typically concentrated in first-world countries and “feedstock” in underdeveloped countries.
Surrogacy can be divided into two types. On the one hand, there is “traditional” surrogacy, in which the father’s sperm fertilizes the surrogate mother’s ovum, making her the biological mother of the unborn child; on the other hand, there is “gestational” surrogacy, in which one or more embryos created in a laboratory using the biological parents’ gametes (or donors, if one of the two partners is sterile) are transferred to the surrogate mother’s uterus. India: a preferred destination beyond creating bioethical concerns, “surrogate parenting” is a practice that easily lends itself to the exploitation of women, particularly those in the poorest socioeconomic groups.
According to the study, the reality of surrogate parenthood in India differs significantly from the romantic image promoted by some American talk programs. “Surrogate motherhood is a gross violation of human rights in India,” according to the report, which also entails “severe health concerns for the woman.” While surrogate mothers live in surrogate homes inside clinics for nine months (or even longer if they breastfeed the baby), these institutions engage in “various illegal activities,” according to Saravanan: they don’t give the surrogate mother a copy of the contract, and they falsify birth certificates and systematically transfer five embryos into the uterus, instead of the three allowed by law, and then use selective abortion—in India, male children are predisposed to abortion.
Many Indian women give themselves as surrogate moms for financial reasons. They prefer to recruit from the poorest sections of society because they can earn more than $4,000 USD for each pregnancy (the payout doubles if they have twins), which is enough to buy a house, start a business, or send their children to a private school.
Lack of Inclusiveness in the Surrogacy Bill
The act clarifies who can be a surrogate and opt for surrogacy. These criteria are quite oppressive as they depict a sense of blatant discrimination. The act excludes LGBTQ couples, Foreigners, etc., from the practice without any extended description. They are excluded as if the LGBTQ+ people are not part of society, hence invalidating their entire existence. This means banning a significant chunk of the population from availing of practice due to vague reasons.
Although a live-in couple is recognized by the judiciary, gay marriage is yet to be legalized in India. So, the term ‘married’ should be dropped in favor of ‘co-habiting’, and a marriage certificate should not be mandatory, as it reduces humans to their physiology. In contrast, Navtej Singh Johar v. Union of India‘s judgment legalized same-sex couples. However, after validating their existence legally, they are restricted to having a child through a surrogate under the surrogacy bill.
The social understanding of “family” is confined to blood relations. The LGBTQ+ community is often disregarded by their biological family. These people have to choose their own families and struggle even to envision having a family of their own. The idea of a heterosexual family dominates both the public discourse and our social imagination. Despite the diversity of families in our society, the state reinforces the idea of the marital family through the surrogacy bill.
Surrogacy regulation does not guarantee the surrogate’s bodily autonomy or the intending parents’ right to parenthood unless reforms are adopted and surrogacy is recognized as a reproductive right. Despite India going through a revolutionary period in which citizens’ thinking is shifting away from patriarchal standards and toward a more feministic ethos, the proposed surrogacy legislation is a blemish on the country’s progress toward equality. However, the 2020 Bill answers all of these cases in the negative, as it outright prohibits commercial surrogacy, and does not allow a single unmarried woman to become a mother.
Childlessness is still a taboo topic in society. Surrogacy may be the final glimmer of hope for many people who, according to the bill’s provisions, may now be left defenseless. As a result, a middle ground is required to protect the interests of both such parties and the surrogate mother. A blanket prohibition on commercial surrogacy isn’t a solution, and it won’t accomplish anything. Similarly, it also fails to include people from different backgrounds and caters to the capitalistic needs of society. This article gives an introspect into the current situation of surrogacy in India and what reforms are to be made. Considering a few prospects, the surrogacy bill of India can serve as an example to other countries as well.