Tracing the journey, and flaws, of the surrogacy bill

Source: Hindustan Times dated 17.02.2020

-- Prabha Kotiswaran (Professor of Law and Social Justice at King’s College London) and Sneha Banerjee  (Postdoctoral Research Fellow at the Centre for Women’s Development Studies)

The government has tried to regulate surrogacy for over a decade. Starting with the permissive 2005 guidelines of the Indian Council for Medical Research, the government has proposed increasingly restrictive bills in 2008, 2010, 2013 and 2014 and has, through notifications of the ministry of home affairs, sought to exclude prospective parents on the basis of marital status, sexual orientation and citizenship. These efforts culminated in the Surrogacy (Regulation) Bill, 2016.

Said to reflect the “ethos of the Indian people”, the bill, unlike in the past, dealt exclusively with surrogacy rather than with Assisted Reproductive Technology (ART) broadly. It banned commercial surrogacy, only permitting altruistic surrogacy, that too performed by a close relative of the couple, where the latter bears the medical expenses and insurance costs.

The prospective parents had to be Indian citizens (Overseas Citizens of India, or OCIs, were excluded), and married for at least five years with a medical indication of infertility. The bill’s provisions would be implemented by an elaborate institutional machinery, backed up by stringent punishment.

When introduced in the Lok Sabha in 2016, it was referred to a Parliamentary Standing Committee (PSC), which, in its August 2017 report, practically reversed every key feature of the 2016 bill and recommended to empanel surrogates rather than recruit a close relative and allow for compensated surrogacy, along with a broader insurance cover. Live-in couples, divorced women, widows, non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and OCIs could avail of surrogacy and the period of proven infertility was to be reduced to one year. Importantly, it called for a comprehensive, legally binding agreement between the prospective parents, the surrogate and the clinic, which would be registered with the State.

Despite these recommendations, a largely unmodified version of the 2016 bill, namely, the Surrogacy (Regulation) Bill, 2019 (SRB), was passed by the Lok Sabha in August 2019. When presented to the Rajya Sabha, it was referred to a select committee, which submitted its report on February 5, 2020.

The select committee recommended involving a “willing woman” to perform surrogacy rather than a close relative, removed the need to demonstrate five years of proven infertility, increased insurance cover for the surrogate to three years, expanding it to include medical expenses, and allowed widowed and divorced women and PIOs and OCIs to pursue surrogacy. Significantly, it emphasised that the ART bill be passed before the SRB, given the medically-mediated nature of surrogacy.

Where the select committee differs from the PSC is its preference for altruistic surrogacy.

A selfless surrogate was performing a “social and noble act of highest level”, setting an example of a “model woman” in society on par with “normal mothers”. Correspondingly, the select committee recommended that surrogates be allowed insurance coverage, medical expenses and “prescribed expenses” to cover the costs of food and maternity wear to ensure their well-being and upkeep. There is no further elaboration on what these expenses could include (unlike in the PSC report).

Herein lies an interesting paradox. Like the proponents of the SRB, the select committee believes that the epitome of Indian motherhood is to produce children for the market, with “divine warmth and affection”, irrespective of the detriment to the well-being of oneself and family. Or it might be that while the committee has valourised free reproductive labour in a tribute to altruism, in reality, the inclusion of the term “prescribed expenses” leaves the door half open for some form of compensation, especially since the arrangement is not restricted to “close relatives”.

While the SRB seemed to frustrate the very possibility of surrogacy through stringent eligibility criteria for both the prospective parents and the surrogate, with restricted payments (medical expenses and insurance coverage) and carried out only for the domestic market, the select committee expands the eligibility criteria and allows OCIs and PIOs to pursue surrogacy, thereby opening up the domestic market.

But, it expects that surrogates in the hopes of being “role models” for society, will carry a child through term for strangers without any compensation even when wealthy OCIs and PIOs commission surrogacy. Who would such “willing women” be and how will the government prevent their exploitation and forced labour given that begar and unpaid labour violate Art. 23 of the Constitution?

The recommendations of the select committee on the sheer unworkability of the SRB as passed by the Lok Sabha are very welcome. The government now has the reports of two parliamentary committees wherein the collective wisdom of more than 50 members of Parliament has demanded a fundamental overhaul of the SRB.

Yet, critical aspects of surrogacy regulation remain untouched — that of valuing surrogates’ reproductive labour and non-discriminatory access to surrogacy, irrespective of marital status (as in the case of adoption).

Although stringent punishments for offences are built into the SRB, in the absence of robust implementation mechanisms, they are likely to result in fewer convictions, thereby producing shadow markets for commercial surrogacy. If passed, glaring omissions may well tie-up the SRB in constitutional litigation for years, rendering uncertain (once again) the legal landscape for those who harbour the hope of making families through surrogacy.