Law and Society

The Surrogacy (Regulation) Bill, 2020: A Transgressive and Transphobic Legislation

Introduction

Surrogacy refers to ‘an arrangement by which a woman gives birth to a baby on behalf of a woman who is physically unable to have babies herself and then gives the baby to her’.[i] The need for developing law in India, for the protection of the parties involved in the procedure was first felt in the case of Baby Manji Yamada vs. Union of India and Another.[ii] The Surrogacy (Regulation) Bill, 2020, (hereinafter referred to as “the Bill”) is a reformed version of the 2019 and the former 2016 draft legislation after the incorporation of certain changes which were suggested by the Rajya Sabha Select Committee.[iii] It is a replica of the Surrogacy (Regulation) Bill, 2016, that had lapsed because of the sine die adjournment of the Parliament.

Based on the 228th Report of the Law Commission, the Bill prohibits the commercialisation of surrogacy and regulates the procedures relating to the same. It aims at allowing surrogacy for infertile Indian couples, that comprise of a female between the ages of 23 to 50 years and a male between the ages of 26 to 55 years. The said legislation allows altruistic surrogacy only, wherein, the surrogate must be a close relative of the heterosexual couple and must be a married woman having a child of her own.

All over India, academicians, scholars, lawyers and activists have severely criticised the Bill for its anachronistic provisions and redundant mandates. Some of the major criticisms and recommendations of the Bill are discussed hereunder.

Vague and Uncertain Provisions

The framers of the Bill have ignored the indispensable need to define the term ‘close relative’.  Various activists and lawyers have suggested that the infertile couple should be allowed to interpret the term extensively so that even the extended family members and close friends are also included. Per contra, the interpretation of the term is left to the discretion of the National Surrogacy Board, which can result in the incessant exploitation of the infertile couple by middlemen in the trade. The Departmentally Related Standing Committee on Health and Family Welfare has also recommended against the close relative clause as it might cause various disputes amongst the family members, including property feuds.[iv]

The legislation provides that the close relative should be married and should have a child of her own, hereby limiting the options available to the couple who are seeking the benefits of surrogacy. It also enforces an arbitrary limit on the age of the surrogate and provides that a person can only become a surrogate once. It can be fairly deduced that the Bill is not fleshed out properly due to the feverish haste with which it was drafted, which further indicates a lack of sincere effort on the part of the framers of the Bill.

Lack of Bodily Autonomy and Economic Opportunity

The said legislation takes away the women’s right to exercise bodily autonomy and prevents the use of honest health and life-risking labour as a means to earn financial security. It imposes a blanket ban on commercial surrogacy, which means that women will not receive sufficient compensation for the hardships they endure, while undergoing such risky procedure. The only compensation referred to in the Bill is limited to insurance coverage and medical expenses, thereby restricting the scope of any financial compensation.

The Select Committee of Rajya Sabha has acknowledged the fact that surrogacy is considered to be an economic opportunity for financially suffering women.[v] The eerie expectation that a woman will incur months of pain and trauma as a form of charity is nothing but a patriarchal notion reinforcing the risible assumptions of women being godlike creatures, who will endure all the hardships because of their motherly instincts and public-spiritedness. It goes on to assume that women are accustomed to familial labour, and therefore, will not expect any compensation or monetary benefit in return.

Feminist activist Chayanika Shah has stated that surrogacy should be considered as a form of productive labour and women should be adequately compensated for the same.[vi] She states that the surrogates risk their lives and face innumerable difficulties in bringing a child to this world and, therefore, they deserve adequate compensation. It should be noted that the blanket ban on commercial surrogacy will only lead to further exploitation of women by the creation of a black market.

Arbitrary Violation of Basic Human Rights

A ‘couple’ is defined under the Bill as any Indian married couple consisting of a male and a female, who are at least twenty-one and eighteen years old respectively.[vii] By virtue of such provisions, any homosexual couple, transgender person, unmarried woman, etc. are completely barred from availing the benefits of a surrogacy arrangement.

The said legislation violates the basic rights pertaining to equality and the right to raise a family by excluding the members of the LGBTQ+ community from its realm of operation. It also restricts single women from undertaking the procedure even though single women are allowed to adopt in India. The lawmakers in their clarifications have stated that the purpose behind the restriction is to ensure the well-being and protection of the rights of the child. It further mentions that childbearing should be available to a married couple only, as the responsibility is shared by both the partners. Per contra, it should be noted that marriage and child-bearing are two separate affairs. Any woman, whether married or not, should have the right to follow her maternal instincts and bear a child. This provision is a regressive approach aimed to conform with the primitive ideas which assume that a woman needs a man to take care of her and her family.

Furthermore, the Bill increases a heterosexual couple’s problems by imposing arbitrary restrictions on their age limits, that are, 23 to 50 years for the female, and 26 to 55 years for the male.[viii][ix] It does not provide any rationale for the said restrictions. These clauses in their entirety highlight the regressive, patriarchal, and homophobic mindset of the lawmakers.

Privacy Conundrums

The legislation puts forth various conditions for a couple willing to undergo surrogacy arrangements.  It states that a couple cannot have a living child, biological or adopted, except if the child suffers from a mental disability or a life-threatening illness with no cure.[x] The same has to be confirmed by way of a medical certificate from the District Medical Board. It further goes to the extent of incorporating clauses that recommend the procurement of certificates which indicate the infertility of one or both of the partners opting for the procedure.

In India, the procurement of such certificates can lead to social stigmatisation and will directly violate the couple’s Right to Privacy, which was laid down as a Fundamental Right in the Justice K S Puttaswamy v. Union of India judgement.[xi] In the judgement, Hon’ble Mr Justice D.Y. Chandrachud stated that privacy acknowledges the ability of an individual to manage his or her day to day activities and personal choices.[xii] The disclosure of the surrogacy arrangement to the authorities for the procurement of the certificates will infringe upon the Right to Privacy of the couple as well as the surrogate mother.

Other Issues

The rights of the surrogate child have not been extensively elaborated upon in the Bill. It remains silent on what would happen if the child is abandoned or exploited in any manner. Another major shortcoming is that it does not contain any provision necessitating the formation of an agreement between the parties, who are availing the benefits of surrogacy.

Conclusion:

While India is going through a transformative period wherein the citizens’ thought process is experiencing a paradigm shift away from the patriarchal norms to the feministic ethos; this Bill acts as a black spot on the revolutionary rise of the notions of equality in the country. The legislators need to focus their attention on improving the workspace for women undergoing surrogacy procedures rather than exploiting the Indian women to provide labour for free. They should also take note of the ostensible violations of the citizens’ Fundamental Rights and make the necessary amends. To say the least, the Bill proves to be a move by the government to appease the general public and increase their vote bank by appealing to their regressive ethos.


Endnotes:

[i] ‘Surrogacy Definition and Meaning | Collins English Dictionary’ <https://www.collinsdictionary.com/dictionary/english/surrogacy> accessed 27 November 2020

[ii] Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518

[iii] ‘Cabinet Clears Surrogacy Bill; Covers Widows, Divorcee Women | India News, The Indian Express’ <https://indianexpress.com/article/india/cabinet-clears-surrogacy-bill-covers-widows-divorcee-women-6288558/> accessed 27 November 2020

[iv] Sabha R, ‘REPORT OF THE SELECT COMMITTEE’ 77

[v] Ibid.

[vi] ‘The Surrogacy Debate and the Missing ART Bill: Chayanika Shah | KAFILA – COLLECTIVE EXPLORATIONS SINCE 2006’ <https://kafila.online/2016/09/02/the-surrogacy-debate-and-the-missing-art-bill-chayanika-shah/> accessed 27 November 2020

[vii] Section 2(g), The Surrogacy (Regulation) Bill, 2020

[viii] Section 4(iii)(c)(I), The Surrogacy (Regulation) Bill, 2020

[ix] Section 4(iii)(c)(I), The Surrogacy (Regulation) Bill, 2020

[x] Section 4(iii)(c)(III), The Surrogacy (Regulation) Bill, 2020

[xi] Justice K S Puttaswamy v. Union of India (2017) 10 SCC 1

[xii] Ibid.

This post is authored by Sanchita Makhija, a 3rd-semester student of Hidayatullah National Law University, Raipur.

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