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The Surrogacy Draft

The newest arrival from the Cabinet policy churn is the new Surrogacy (Regulation) bill 2016. It ensures to protect the rights of a surrogate child and a surrogate mother. Surrogacy is essentially when another woman gives birth for the couple who desires to have a child and she is rewarded for the same. The act is a common occurrence in India so much so that our legislator’s hands were forced into the unregulated sector. Over the years, it has emerged as an increasingly popular modus operandi amongst women for financial gains.

 One of the most debatable propositions in the new bill is the banning of commercial surrogacy. ‘Commercial surrogacy involves the provision of a fee, reward or other material benefit or advantage to a person for the person or another person: agreeing to enter into or entering into the surrogacy arrangement’ as defined in section 9 of Surrogacy Act. This practice helps the surrogate to financially support her own family, which isn’t necessarily a remedial requirement. This helps the woman to contribute in her financial pool or for some it might even be the primary source of income. With the ban of commercial surrogacy there will be some families which will fall below the poverty line. The government’s concern however is not entirely misguided, commercial surrogacy has long been a source of exploitation of women. A woman carrying a couple’s child, bears pain for 9 months and later when gives birth is being denied for proper compensation. Or when a woman gives birth to twins, the couple takes one and denies another leaving the infant without any support. In an interview with the Economic Times a surrogate mother shared her feelings by stating, "If we’re able to do something good for a childless family and get paid for it during tough times, what’s the harm in it?” This woman is voluntarily happy about her choice which shouldn’t be a problem to anyone. There are many surrogates who can comprehend her situation and might feel the same. What the government needs to regulate is not the outcome of the process but the procedurial stipulation that preceded.  Even though the ban on commercial surrogacy opens doors to adoption, it is a really long process that isn’t inclusive of all couples and has so far failed to address.

The bill doesn’t extend the scope of surrogacy to homosexual couples, single mothers and lives ins while ironically the Supreme Court gave legal validity to live in relationships in 2015. This has understandably led to a rise of popular disagreement with these conservative principles.  Motherhood shouldn’t be influenced by a government’s decision but by an individual woman and her freewill. “When the law allows adoption by a single parent, why not allow surrogacy too?" Indira Hinduja, a Mumbai-based infertility specialist who delivered India's first test-tube baby in 1988, asked soon after the cabinet approved the bill.The bill further plans the marriage limit of couples to be 5 years and not less than that. Does this signify the couple can’t get a child through surrogacy after 2 years of marriage? And they would have to wait for 5 years to legally get a surrogate child? That too can only be carried out upon the assertion of infertility in one of the partners.

The bill however, recognizes altruistic surrogacy. When the surrogate is given no financial gain to carry the child and only the medical expenses are paid surrogacy will find statutory approval. In most cases of surrogacy there is some benefit attached to the process. It may not necessarily adopt the form of a monetary transaction through a legal procedure. How does the government intend to implement the said law and restrict this form of commercial surrogacy under the garb of altruism? More importantly if there is an understanding for some commercial benefits in opposition to the law, there will be legal validation for economic exploitation of the woman in case of a denial of compensation. It is essentially a legal ground for exploitation. Furthermore, only a close relative can be a surrogate mother of the couple legally. This principle also seems to ignore the possibility of the surrogate mother developing feelings towards her baby? Or completely denying helping them?

If a woman already bears a biological child she can’t be a surrogate mother. And if she’s gone through surrogacy once, she can’t go through the process again. The bill thinks it’s a drawback if the woman willingly wants to be a surrogate mother more than one time. Restricting free will to a one time use. In validating the point External Affairs Minister, Sushma Swaraj remarked’ “I am sad to say that the necessity has become a fashion”. She indirectly attacked Shah Rukh Khan and Aamir Khan who have had a surrogate child in spite of having biological children and blamed them for making the procedure ‘fashionable’. Foreigners have also in recent memory made India a hub for surrogacy bypassing the complexities of their own domestic policies. The bill effectively bans foreigners to seek an Indian surrogate mother. This includes non-resident Indians (NRIs). This again is an exemplary notion to ban the problem itself rather than to regulate the procedure to erase the malady.

The bill’s center of attention should be giving equal rights to a surrogate child as a biological child gets. It should ensure protection of surrogate mothers by maintaining accountability. They should set up more health clinics to look after them so their development isn’t neglected or becomes a burden on the surrogate mother. The drafted bill has faced criticisms by the doctors too. “The bill should necessarily have a surrogacy regulatory body in states as well as union Territories to regulate hospitals and clinics that provide surrogacy in India. It should look upon all the cases related to surrogacy and ensure their rights. Women are exploited only because there is no one to look after them and doctors could possibly take advantage through unacceptable treatments due to absence of any laws and regulation” as informed to The Economics Times by the health care personnel.

The Surrogacy Regulation Bill 2016 is a seemingly necessarily but regressive step by the Cabinet. After acknowledging the draft, one could rationally fathom why it is facing criticisms. Commercial surrogacy has certainly increased in numbers, but what is needed is the regulation of this industry which certainly doesn’t imply banning it. The surrogate mothers are messiahs for happiness in a childless family and they definitely deserve more credibility and regulated compensation. Their rights should be safeguarded by proper laws so that they get equal identification in the society. The draft bill escapes both liberal logic and reality. Monetary compensation does not dilute the nobility of an act, deed or occupation. Secondly the free choice of a woman to reproduction is an important aspect of self determination that is guaranteed by the constitution. Not only does the draft bill lack rationale and liberal thought, it escapes social reality.

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Written By Gunjan Sharma

Currently studying economics majors in KC College. Aspiring to specialize in field of finance.

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