Ban in the garb of regulation

Surrogacy bill: The draft law only worsens the moral failures that it seeks to avoid

Let’s not be under any illusion regarding the Surrogacy (Regulation) Bill, 2016. The title suggests that it “regulates” surrogacy and the discourse surrounding it, but the bill has more to do with how we conceptualise a family. 

In its basic contours, the bill aims to ban commercial surrogacy, or the hiring of an Indian woman to carry a child in exchange for compensation, and restrict altruistic (without payment) surrogacy arrangement to married Indian couples who have not been able to have a child for five years, despite undergoing treatment for infertility. This effectively excludes gay couples, single individuals, live-in couples, foreigners, Non-Resident Indians, Persons of Indian Origin and Overseas Citizens of India, and also negates those who have a child, adopted or naturally born. 

The importance of the bill and its reverberations cannot be ignored. It jeopardises the existence of an industry whose earnings and projections are constantly changing and increasing—not to mention the kind of association that this ban brings with Transplantation of the Human Organs Act (THOA), 1994.

 The In Vitro Fertilisation (IVF) fraternity insists that a ban will push the practice of commercial surrogacy underground, similar to the way in which the prohibition of the sale of human organs led to a proliferation of bodies and organs that began to circulate in underground markets, and still do. But herein lies the biggest dilemma of “regulation” and a ban. Both carry larger moral-societal implications that cannot be ignored. In case of commercial surrogacy and its ban, the social implications are not minimal, but actually exacerbate the moral failures that it seeks to avoid.

In selling and bringing forth a Surrogacy (Regulation) Bill, the conversation on assisted reproductive technologies such as IVF seems to be forgotten.  In the effort to focus on commercial surrogacy, the bill forgets that surrogacy in its current avatar is a manifestation of technological and third-party interventions in the form of the egg donor and surrogate. 

Though the promise of bringing in a refurbished new Draft Regulation of Assisted Reproductive Technologies (ART) Bill is being articulated, a separate bill for surrogacy signals the changing stance of the government. The fact that technology facilitates asexual reproduction has fuelled the widespread acceptability and proliferation of commercial surrogacy. By formulating an independent bill, the state wishes to bring the focus back to the woman and her womb—and the idea that the patriarchal family is its primary owner. 

Altruism or selflessness carries within it many ideas, but its most active association is always with the family. To invoke similar ideas in endorsing a particular form of surrogacy has a lot less to do with money, and more with the family. This is particularly interesting when seen in relation to the associated discussion on egg selling, which has also been banned. In the draft ART Bill 2010 – drafted by the Indian Council of Medical Research (ICMR) and Ministry of Health and Family Welfare – relatives are barred from being donors of eggs and sperm. This leads to a quandary regarding the altruistic surrogacy arrangement. 

Does that mean that the surrogate, who will now preferably be from within the family, be the genetic mother of the baby she carries? Will the idea and practice of the predominant gestational surrogacy or the practice where the surrogate’s uterus is used for incubating the pregnancy without any contribution of her eggs, become redundant? And though the bill says that the mother who will contract the arrangement, will be the legal mother in all documents, the link between egg donation and surrogacy is not clearly explored.

Needs rethink

Thus, the Surrogacy Bill wants to protect the surrogate from exploitation by mandating a singular form of familial formation. As has been discussed before by feminists and civil society activists, the notion of ‘exploitation’ within the surrogacy arrangement needs a thorough rethink. Instead of creating an atmosphere of regulation and autonomy for the surrogate by encouraging her participation in commercial surrogacy contract, or facilitating the creation of surrogate trade unions or scrutinising payment and post-partum care provided by clinics, the bill merely takes the easiest way forward, that of a ban. The new bill is not interested in regulation, its primary thrust is prohibition and exclusion where it equates commercial surrogacy to a ‘motherhood on sale’ discourse. 

The bill aims to identify the parameters of who can or cannot be a parent considering the exclusion of parentage based on two important factors – citizenship and marital status. The anxieties of children born from commercial surrogacy being left stateless due to prohibitory laws of the countries to which the parents belong builds on the direct link that the state has in regulating citizenship through the family. The ban on not only foreigners, but also on NRIs and PIOs, is fuelled not only by fears of a repeat of the Japanese baby girl Manji – who was stranded in India because Japan does not recognise commercial surrogacy – or the German Balaz Twins who were not recognised in Germany, but also by the emergence of an alternative family. 

The jibe by External Affairs Minister Sushma Swaraj about celebrities hiring surrogates as a lifestyle choice, rather than a necessity, also highlights the anxiety among single celebrities like Tusshar Kapoor who want to have children without getting married. In such a situation, social and legal recognition of the child must take into consideration the changing meaning of families.

This is also significant as commercial surrogacy became a popular mode of having children and families for many gay couples from around the world who were not allowed to adopt. Prohibition on the basis of sexuality and marital status has added another barrier for the Indian gay community that is navigating regressive laws, like Section 377 of the Indian Penal Code. But what is intriguing is that now, single men are further distanced from fatherhood, as adopting a girl child is prohibited.

The connection between adoption and the bill on commercial surrogacy provokes more questions. Instead of encouraging adoption, the bill discourages it by making it difficult for adopted and biological children to coexist. In case a couple has adopted a child, they cannot opt for surrogacy, thereby making it difficult for many couples to exercise the adoption option. While an age restriction of 50 years for women and 55 for men is a significant step to avoid the new-found zeal with which elderly couples are jeopardising their health and life to have children through IVF at the ages of 70 and 80, the prohibition that marks the right to procreate within the Surrogacy Bill is deeply discriminatory. 

(The writer is an assistant professor at the Manipal Centre for Philosophy and Humanities, Manipal University)