“The practice of surrogacy has been misused by the surrogacy clinics, which leads to rampant (misuse) of commercial surrogacy and unethical practices in the said area of surrogacy,” reads the statement of objects and reasons to the Surrogacy (Regulation) Bill, 2019 tabled in the Lok Sabha on 15 July. An internet search on the topic produces articles with grim images of desolate pregnant women as if longing for an escape from their circumstances. These articles often have enraging titles like “wombs on rent” or “baby shops”.

Is commercial surrogacy so inherently exploitative and commodifying as the Bill claims it to be? Or is it a boon for couples suffering from infertility and a means for financial and social empowerment for the surrogate mothers? These questions can only be answered by sociologically observing the experiences of the people involved, especially surrogate mothers and by studying the interaction between the state and the people’s legal rights.

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Like any commercial activity with predominant human involvement, surrogacy also poses a threat of exploitation and health-related complications. However, Lakshmi, a surrogate in a bustling fertility clinic in Hyderabad says that surrogacy helped her construct her home, pay for her daughter’s education and take care of her father’s medical expenses and achieve respect in her house as a bread winner. Placed against hundreds of such testaments from surrogate mothers across the country, justifying the forced stigma against the activity is very difficult. An important missing link The Surrogacy (Regulation) Bill, 2019 aims to ban commercial surrogacy and allow only altruistic surrogacy wherein the surrogate mother is required to bear the child of the infertile couple for no financial reward. The Bill also proposes myriad new regulations including that the surrogate mother has to be a close relative to the infertile couple and that a medically proven infertile couple has to wait for a minimum of five years before pursuing surrogacy.

The government seems to have done little to establish a causal relationship between the commercial aspect of surrogacy and the supposed “rampant” exploitation, if at all. The various biological and physiological changes that a woman undergoes during pregnancy certainly put a modicum of emotional, psychological and societal strain on the surrogate mother. However, seeking that she accept no money for her service is not a solution but a problem in itself.

Firstly, the only way in which a surrogate mother can firmly disassociate herself from the infertile couple’s baby is through making the relationship purely contractual with the terms, conditions, consequences and possible risks comprehensively explained to her, enabling her in giving a free and informed consent. To do away with such a critical aspect of the dynamic and to expect a close relative to emotionally or instinctively help out the infertile couple completely misunderstands the ground realities.

At the same time, this contractual nature of the arrangement does not require the mother to be commodified at any level. With a healthy and progressive regulatory environment in place, commercial surrogacy would be a deeply meaningful experience for all the stakeholders involved. The commercial aspect need not necessarily hinder a surrogate mother from experiencing the altruistic pleasure of assisting an infertile couple conceive a child.

For example, with the rising ageing population in India, the home care sector is projected to reach around $6 billion by 2020. The commercialisation of these caring services does not automatically mean that the carer-givers are exploited or commodified. In fact, the financial aspect of it is crucial in treating the parties fairly, in refining the quality of the services and in making the industry conducive to regulation.

Secondly, while the Bill claims to only regulate surrogacy, it practically abolishes surrogacy. Gita Aravamudan, a noted journalist and author observes in her book Baby Makers why altruistic surrogacy is an impractical idea in India. On one hand, no woman, however close a relative she might be to the infertile couple, would become a surrogate mother with no compensation for her physical and emotional labour. On the other, with commercial surrogacy gone, poorer relatives in a family would be pressured into acting as surrogate mothers against their will.

Women’s bodily autonomy denied

On a more fundamental level, the Bill seems to be ill-conceived at best for how it treats women in general and how it manages the tenuous relationship between the state and the citizens’ legal rights. The assumption that an adult woman is not capable of giving an informed consent merely because she is a woman and perhaps economically disadvantaged is highly patriarchal and has obsolete colonial underpinnings to it.

Likewise, the Bill reads, “the court shall presume, unless the contrary is proved, that the women or surrogate mother was compelled by her husband, the intending couple or any other relative, to render surrogacy services,…”. Treating women merely as subjects of their circumstances rather than persons capable of decision and action is problematic and is perhaps the reason why the Bill also outcasts the needs of same sex couples who cannot parent biologically related children without surrogacy.

Regulating surrogacy is a law maker’s rare opportunity to recognize and restate the autonomy that every citizen has in its own body by virtue of the basic rule of law and constitutional fundamental rights. Instead, the legislature chose to assume ownership over the woman’s body and to artificially attach to her an inability to exercise her personal reproductive freedom. Certain aspects of human existence including the various reproductive freedoms pre-date our legal system and the constitutional text and therefore cannot be seized by the state.

With similar reasons at hand, the Parliamentary Standing Committee on Health and Family Welfare recommends in its 102nd report that taking away the right to have a child through surrogacy violates the reproductive rights of couples. It further recommends that a way of calculating adequate and reasonable compensation for the surrogate mother may be devised instead of banning the arrangement altogether.

Other observations

While this article has largely been about why banning commercial surrogacy is a deeply flawed idea, the bill suffers from several other problems that have received little attention in the media. One such example is that the bill requires a couple to publish their infertility with the government, which violates the couple’s fundamental right to privacy considering the societal stigma attached to infertility. Similarly, to seek the infertile couple wait for five long years before they may utilise surrogacy is unreasonable and unnecessary.

My field research in the subject reveals surrogate mothers finding the process much more meaningful and fulfilling than the alternative employment that they might have to take up in exploitative places of work with no respect for labour laws putting them in real physical and psychological danger. In place of truly empowering Indian women by guaranteeing their autonomy and freedom, the bill subscribes to a crassly anti-liberalist thought that generally finds its place in the abolitionist argument for abortion.

The writer is a law graduate and an L.LM candidate at the London School of Economics.