Surrogacy laws in India clearly need an overhaul; here's why
After the death of a surrogate at AIIMS, doctors are calling for a law to regulate commercial surrogacy agreements. A blanket ban on commercial surrogacy clearly is not working - instead, the state needs to regulate this lacuna in the law, and provide much needed legal protection to women who enter surrogacy arrangements.
Doctors at the All India Institute of Medical Sciences are demanding a faster overhaul of the surrogacy laws in India, on the heels of the death of a 42 year old surrogate at the hospital. The surrogate mother, who was carrying twins, was 17 weeks pregnant. She passed away following serious pregnancy-related complications.
As per an investigative report following her death, it was revealed that she had a long history of illnesses, none of which had been disclosed. As per the guidelines of the Indian Council of Medical Research (ICMR), these illnesses would have disqualified her from being a surrogate.
The ICMR guidelines are in place until the Surrogacy Regulation Bill, 2019, comes into force. Approved by the Lok Sabha in August, the Bill is now pending approval by the Rajya Sabha.
Under the provisions of this law, Indian women can only be surrogates for altruistic purposes, and can only offer surrogacy to infertile couples. Furthermore, the surrogate, under this new law, must be a ‘close relative’, and foreigners, NRIs and PIOs are no longer allowed to commission surrogacy in India.
In short, the law bans commercial surrogacy agreements.
The surrogate at AIIMS was a 42 year old widow. Although it was known that she worked as a surrogate, the details of the commissioning family have not yet been released. She had been hired by a surrogacy agency, which was unaware of the health risks she faced, as she had not disclosed her medical history to the agency. This was clearly an example of commercial surrogacy.
In light of this information, doctors at AIIMS have demanded that the Surrogacy Regulation Bill be notified as soon as possible.
There is now an escalating need to regulate commercial surrogacy on a nationwide level in India, and update the law to reflect the ever-evolving nature of reproductive technologies. Commercial - and not altruistic - surrogacy remains a reality, and Indian law needs to recognise this.
Why this distinction between commercial and altruistic surrogacy? This question boils down to this: should a woman be paid for this service?
There is a very succinct feminist response to these questions: that the ban on commercial surrogacy is a reinforcement of patriarchal ideas of what is ‘appropriate’ for women.
Gender norms are all pervasive, the idea of motherhood being most common. Women are expected to have maternal instincts. It is ‘natural’ for them to want to love and raise a child of their own. Any deviation from this norm is a subversion of societal expectations. It is particularly offensive to the patriarchal set up, to have women who would voluntarily abrogate her right to keep her child - particularly in exchange for financial remuneration.
Thus, in banning commercial surrogacy, we are essentially taking away a woman’s autonomy over her own body. A paternalistic law such as this is tricky - veiled in concern for the surrogate, it not only takes away legal ways a woman can fight for her rights, it also ignores the possibilities of exploitation within altruistic surrogacy.
Essentially, the government is saying ‘What she is doing is okay, provided she isn’t paid for it’.
This is the stage when comparisons of surrogacy to sex work come into play. Both are instances of women monetising their bodies. In one instance, it is her womb. In the other, it is her sexuality.
Would a rational, fulfilled woman voluntarily go into sex work unless so coerced? Society assumes never, because of the negative connotations and stigma involved.
Independent of this, surrogacy is a mutually beneficial agreement. Some might even call it mutually exploitative – which is not necessarily a bad thing, in today’s capitalist economy.
And yet, the comparisons between sex work and surrogacy are made repeatedly, and continue to be extremely problematic.
So is it the responsibility of the state to take action against the woman herself, against the system and technology?
It would be more feasible, and much more rational for the welfare state to regularise and regulate practices that are already rampant, and thus provide legal protection to those they already assume to be vulnerable.
Legal protection can only exist for as long as there is a rule in place.
A new wave of familial re-structuring is here. What with the increased visibility of the LGBTQI movement, with rapidly evolving reproductive technologies, and with women gaining surer footing in every sphere of life, it is time our legislation caught up to the need of the hour.