The Surrogacy (Regulation) Bill was recently passed by the Lok Sabha and now awaits Rajya Sabha approval. The Bill, amended from its original 2016 draft, now seeks to ban “commercial surrogacy” practices in India, making it criminally punishable, while allowing only for “altruistic surrogacy”. Further, the banned regulation now also prohibits same-sex couples from having children via surrogacy.
Commercial surrogacy has been observed, for some time now, as a practice in India where an “intending couple” pay either the “surrogate mother”, her kin or her representative for her service. Citing massive exploitation of women who are subject to the pressures of “market forces” and “compelled” to become surrogates by “families and intending couples”, the government acknowledges commercial surrogacy as a bane. There are certain issues with this rather extreme presumption.
Firstly, the assumption, born of a patriarchal mindset, in the Bill on how all surrogate mothers are “compelled to be surrogates” seems misplaced, lacking empirical evidence. Most who argue against surrogacy tend to cite how it may lead to: a higher degree of exploitation of women for commercial interests; or, that there remains the possibility of a high level of inequality in terms of “bargaining power” (between the surrogate mother and the intended couple) as most surrogate mothers, presumably, come from economically weaker sections of the society and are therefore not in a position to demand fair compensation.
Some of these arguments are true as the market alone cannot do much to avoid instances of exploitation of women and, of course, there is a case for regulatory oversight (as was the intention of the original 2016 bill). We discuss three areas here that may help strengthen a contract between willing parties for surrogacy with adequate checks and balances and help initiate a more thorough discussion on the subject.
Contract: The legislation can deliberate to enact a few principles (with rules) on the nature of the contractual obligation between the intending couple and the surrogate mother. For example, the Indian Contract Act (ICA), 1872, provides for certain elements for creating a valid contract. One of the essential ingredients is “consideration”, which is stated in Section 2(d) of the ICA, 1872. A contract that is made without a “consideration” is therefore void.
Under the Contract Act, consideration means an act (legal) undertaken by the promisee or any other person to do/or abstain from doing at the desire of the promisor. In this context, it would be concerned with the “remuneration” for a surrogate mother to be paid by an intending couple. The Surrogacy Board can be given the responsibility to judge the fairness of the contract between the parties. This will allow commercial surrogacy to work effectively as the surrogate mother will get a chance for fair remuneration and tackle the problem of exploitation.
Property in the Body: Drawing on Donna Dickenson’s work on “Property in the Body”, a woman’s body is not an object, but oneself; there is no property in the physical body, but there is property in our person. Thus, everyone has the property in person which nobody else has a right to except the person himself/herself.
Dickenson’s work is critical here in understanding how women possess a property right in their reproductive labour. Using her argument as underlying logic, a woman voluntarily undergoing the process of surrogacy cannot be equated to “renting a womb” or “commodification”. She is willingly using her “property in her person” to get remuneration of her own labour. The body is not being commodified, rather the “self” is being put to use at the will of the individual herself.
Further, a fair contract can allow a fair remuneration to the surrogate mother, covering the loss of wages during the period of pregnancy. Altruistic surrogacy, on the other hand, does not take into account the loss of such wages.
Informed consent: The doctrine of Informed consent is understood as “the duty imposed on a doctor to explain the risks of recommended procedures to a patient before a patient determines if he or she should go forward with the procedure”. It’s vital to amend the Bill to ensure informed consent on the terms and basis of fair remuneration that must be offered and made acceptable to the surrogate mother, with the burden of responsibility to facilitate informed consent falling on the intending couple. At the same time, the contract between the parties must be approved and monitored by the Surrogacy Board.
Lastly, the current Bill bans same-sex couples from availing surrogacy. This makes the current law discriminatory towards a group of citizens, making it a gross violation of Article 14 of the Constitution (Right to Equality).
The provisions of the current Bill, particularly Section 4 (ii)(b) legalises altruistic surrogacy, citing chances of lesser exploitation. However, exploitation of women (for commercial or non-commercial reasons) can happen within altruistic practices of surrogacy as well. Invoking “massive exploitation” as a sole argument to ban commercial surrogacy does not make sense.
It is important to recognise how despite certain instances of exploitation the practice of surrogacy has significantly helped in promoting the independent choice and agency of women (across groups) in matters of fertility preference, allowing childless couples to seek help.
A more in-depth discussion on a sensitive subject such as this is required to accommodate multiple uncertainties and concerns. Fixing legal guidelines on ensuring informed consent regarding the terms of surrogacy for the parties involved, with processes of full documentation and fair remuneration for the surrogate mother will help improve the contractual partnership between intending couples and willing surrogate mothers.
(Deepanshu Mohan is Assistant Professor of Economics, Jindal School of International Affairs, OP Jindal Global University; Shivkrit Rai is a student at Jindal Global Law School)