A recent death of a surrogate (happened in October, 2019) has raised grave concerns about women belonging to poor sections of the society being forced to enter into the exploitative realm of surrogacy. The 42-year-old middle-aged woman who was about 17 weeks pregnant eventually lost her life at AIIMS, Delhi after encountering serious pregnancy related complications. The fact that her medical history didn’t give a very positive picture, with TB, depression and other medical conditions forming an inseparable part of her life, the question of whether such a woman was healthy enough to carry two twins in her womb until pregnancy becomes a matter of serious concern.
Surrogacy is a quite prevalent technique which is still practiced by countries like Greece, Russia, Armenia, Ukraine, etc. It is a method where individuals, who aren’t able to bear a biological child of their own can commission a surrogate mother to carry their child. This arrangement may be commercial or altruistic in nature. Commercial surrogacy involves an agreement which includes monetary compensation to the surrogate mother, along with medical expenses associate with the pregnancy. Altruistic surrogacy on the other hand, focuses on the more informal method where the surrogate mother is known or related.
The Government of India recently re-introduced the Surrogacy (Regulation) Bill in the Parliament, which had lapsed in December 2018. The bill seeks to completely ban commercial surrogacy and only permit altruistic surrogacy as an alternative for ‘married or heterosexual’ couples who are unable to bear children. The intending couple should have a “certificate of essentiality’” and a “certificate of eligibility” issued by the appropriate authority. In order to obtain these certificates, the surrogate mother has to be: (i) a close relative of the intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35 years old; (iv) a surrogate only once in her lifetime; and (v) possess a certificaten of medical and psychological fitness for surrogacy.
Clearly, the government’s initiative intends to prevent the exploitation of surrogate mothers and to ensure that commercial surrogacy should not become a racket where doctors and the affluent use their finances and resources to dominate helpless women in yet another facet of oppression. With the passing of the legislation, the surrogate mother will have no say in the potential means of nutrition and the basic care during and post-pregnancy, and will have to forgo her rights in the child’s upbringing.
There are several ethical perspectives regarding this ‘beneficiary legislation’. The discourse about commercial surrogacy has long been controversial and ethically problematic. Feminists, bioethicists, and a number of medical professionals have argued that it is immoral to capitalize on women’s reproductive capacities. They believe that viewing pregnancy in monetary terms will commodify babies leading to the dehumanization of women and children. However, the question that arises is this. Is imposing a complete ban on surrogacy the best solution?
Firstly, we need to focus on how the entire debate is around the kind of surrogacy, with little focus on efficient and safe In Vitro Fertilization (IVF), which is actually the first step in Assisted Reproductive Technology (ART). The basic foundation needs to be set right before, one jumps to the end result. The bill has left out the commercial and profit-driven industry of the ARTs, which is overwhelmingly found in the private healthcare sector. Infertility treatment using ARTs and IVF has been available commercially in India for over three decades now. Yet, there is no regulation that governs this sector. Though guidelines were formulated by the Indian Council of Medical Research in 2005, they are not legally binding. While it is important to debate surrogacy, at the same time, the ART industry which drives it, must also be regulated. Surrogacy is only a specialized part of the bigger industry of assisted reproduction; solely regulating commercial surrogacy might not bring about any major changes in the industry.
Secondly, the legislation shows that the government is eager to impose a certain morality on its citizens, as the bill excludes gay couples, single men and women, and unmarried couples who might want a child. In doing so, the government overlooks the needs of many same-sex couples and single parents. In the 21st century, post the decriminalization of Section 377 of the Indian Penal Code, these are the areas where sensitivity and inclusivity could be shown. Moreover, the exclusion of single parents is problematic as it emphasizes the importance or essentiality of marriage as a precursor to having a child.
The 228th Law Commission India Report on Commercial Surrogacy strongly recommended prohibiting of commercial surrogacy. However, it stated that “prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational.”
When this bill was reintroduced and passed in the month of August, 2019, there was an understanding that followed, which established the sort of an idea that the government has somewhat become successful in making the surrogacy law stricter than what it was. However, the recent death has created tensions among people, especially the doctors who feel that there is still that needs to be debated, discussed and achieved in terms of the limitation and regulation of commercial surrogacy. They believe that these women who agree to carry out a commercial surrogacy on account of the money that they receive, eventually end up losing their lives.
Some people do however, advocate a complete ban on commercial surrogacy. However, a possible consequence of a complete ban could result in illegal surrogacy which can be difficult for the government to regulate, and can also contribute to a tarnished image of India in the global context. More importantly,
the fundamental question of agency, whereby the surrogate mother makes some money out of the process is not entirely unethical and immoral, and should not be viewed through a narrowed lens. Altruistic surrogacy would increase the burden on the surrogate mother, and one cannot ignore the exploitation of women coming from families in the absence of a formal contract.
A regulation in the industry is certainly a much-needed reform, but this bill didn’t really take into consideration all perspectives and analyses. The argument of a superimposed morality might have been stretched too far, and other Sections, such as those about the essential requirements of “intending couples” are not inclusive at the very outset as they ignore so many other situations where couples, as well as individuals, might want a child through surrogacy. Surrogacy is just one fish in the pond, and while this is being taken care of, other areas such as ART should also be regulated. Unless all perspectives are accounted for, any legislation, even with the most noble purpose and intent, might not result in something substantially beneficial.
Author: Twisha Srivastava
Great article, so well analyzed!