The approval of the Surrogacy (Regulation) Bill, 2016 by the Cabinet is as appalling as it is sad. Allowing “altruistic surrogacy” while banning “commercial surrogacy”, the Bill openly discriminates against a large section of the society.
Agreed that the exploitation of surrogates was rampant in India and still is but the new Bill does nothing to prevent that except set out a few confusing and unanswered statements which will regulate surrogacy in India.
The Bill states that only a close, married relative who also has a child of her own, can now be a surrogate mother to a heterogeneous couple who have been married for 5 years. Why fixate on 5? No answers.
And yes, one try only please! The Bill doesn’t mention what happens if the surrogate fails to deliver the baby, or the baby faces some serious complications at birth and so has to be aborted. Do our socially accepted heterogeneous couples, get another shot? And what happens if the failed attempt is not registered at the clinic itself. People could always work their way around the doctors and staff to ensure that only the 2nd or the 3rd successful delivery gets registered.
Minister of External Affairs, Sushma Swaraj’s blatant discrimination against homosexuals and live-in partners saying that it is not part of “our ethos” does no service to the society and nor to India’s global image as a tolerant and egalitarian State.They can forget to ever have a child of their own for all the government cares.The Bill has segregated the ‘ideal family’ from the rest, giving only those who conform to the set rules, the right to get a child via surrogacy.
Also, by subtly citing few examples by playing on public memory, one cannot make the claim on rising celebrity culture in surrogacy!
The government continues to look at surrogacy as a black and white phenomenon. It indicates to a very money-minded mechanical process when it comes to women outside the family offering themselves for surrogacy in lieu of payment and a very clean, sacrificial approach when close relatives do the same. The ethical boundaries are very easily erased and no questions asked as to how emotionally traumatic it can be for the biological mother to see the child at all the close family functions and serving as an equally painful reminder to the new parents that their right over the child is also not holistic.
If the surrogate mother is a complete stranger to the family whose only incentive is monetary in nature, the advantage to the couple is that, they get to choose the time and place to address the child’s biological linkage to him/her according to their convenience. This would be an extremely sensitive topic to break to the child and having a close relative be the surrogate would inevitably lead to divisions over how to handle the issue depending on the proximity of the family.
For the childless couples from India or abroad, Dr. Nayana Patel was a boon from God who ensured successful IVF deliveries to many couples over the years in the small town of Anand,in Gujarat. Though receiving flak from many who accused her of commercializing the sacred bond between the mother and the child, Dr. Patel has nevertheless had support from the surrogate mothers themselves who were happy with the procedures and the remuneration offered so much so that many of them came back for the second and third delivery. This is not to defend commercial surrogacy as it exists today but is an appeal to not vilify it completely and to initiate changes in its present form.
It is imperative to see the larger picture in which the State intrudes into the personal life of the citizens and takes away some of their important choices regarding the nature, size of their family and their chosen form of parenthood.
The emotional repercussions of having and not having a child is something that would be unfair on our part to expect the State to deal with, and draft a Bill on, but what was required from the state was a Bill that addresses that choices like Marriage, of when and how to start a family and liberty of choosing whom to nurture one’s children with, is a basic right.
Notions about parenthood and the experiences and expectations from it are highly subjective and the State should respect that.
The new Bill prohibits a couple from opting for surrogacy if they already have a child- whether biological or adopted. While it’s great that the State encourages adoption in a way, it still cant shove that option down people’s throats.Birth of a child is often more than just an addition to the family. It addresses the constant need for couples to redefine and rejuvenate the relationship, to have one’s own being brought into the world and to feel responsible for someone in life. The new Bill is dictatorial in its approach and not empathetic in such a sensitive issue as it should be.
What’s the Way Out?
The State should focus on setting the legal parameters for commercial surrogacy to grow in India without exploiting the women involved in it. The National and State Surrogacy Boards should enable proper background check on surrogate mothers- their family, earning members, annual income, ensuring that there are mechanisms for a thorough physical and mental examination of the surrogates to determine if they have agreed to carry the child under some stress or not.
Channels for redressal of grievances should be established, along with a set compensation for the surrogate alongside medical expenses. That money is a powerful incentive cannot be forgotten and should be addressed rather than taken out of the picture itself. Sidelining the monetary aspects of surrogacy will only strengthen underground mediums for people to get what they want leading to a highly immoral and exploitative environment.
Swati Sudhakaran is currently pursuing MA Public Policy at Mt Carmel College, Bengaluru