Passed by the Lok Sabha on Wednesday, the Surrogacy (Regulation) Bill 2016 that bans commercial surrogacy has come into criticism for reinforcing archaic, often unrealistic ideas of family and prohibiting homosexual couples from commissioning surrogates.
Effectively, the law bans women from accepting payment to become surrogates with the aim of bringing oversight into a medical realm that has often been at the heart of exploitation of women from low-income group families across the country. It says that no money can be paid except “the medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother”. The surrogate must be a “close relative” of the couple.
However, experts and activists argued that the law has several potential blind spots, including the mandate that only "close relatives" can become surrogate mothers, which doesn't take into account the patriarchal nature of many family relations in the country and the mandate that only a man and women, married for five years, can commission surrogates. This, experts, pointed out, discriminated against not just homosexual marriages, but also those who marry late and couples in live-in relationships.
The bill is the result of a 2009 report by the Law Commission of India that recommended a prohibition on commercial surrogacy - a process wherein a woman accepts a fee to carry an embryo to term for another couple. With commercial surrogacy heavily regulated in many western countries, India had become a hub and several incidents of women being exploited or coerced had been reported.
But while the law sought to end such exploitation and bring regulation into the realm for "altruistic surgery", experts argued that the Bill was "inflexible" and privileged an "archaic family system" that was not in sync with present reality. The parliamentary committee, for instance, that analysed the bill had opposed an outright ban, arguing that the bill in the present form was "moralistic" and robbed women of agency.
In particular, experts argued allowing only "close relatives" can become surrogates didn't take into account the inequality that remained in many families. "Regulation is much required, but this bill assumes that a surrogate will make a free choice. It completely forgets that women are often, the most powerless within a family system. Just because the transaction is taking place within the family does not necessarily imply that the woman is not being coerced for forced," said Dr Pratima Sen, a Kolkata-based reproductive endocrinologist.
Anant Bhan, researcher, global health, policy, and bioethics added that the bill was "unclear" as to what 'close relative' exactly means. He added that the mandate a man and women need to be married for five years failed to take into account the reality of modern relationships. "In today's world, many couples tend to marry quite late. They could be in their late thirties when they marry and this is something that the law is inflexible on. Regulation is much required, but the bill in its current form is quite problematic. The focus on heteronormative couples discriminates against single people, same-sex couples. This, in spite of the recent Supreme Court judgement."
Harish Iyer, Queer India added that the exclusion of the LGBTQ community resulted in the "denial of equal rights" for the community and argued that the bill was "highly prejudiced". He said, "If the sole intention had been protecting the rights of surrogate mothers and to steer against making wombs-on-rent a norm, there would have been a plan to rehabilitate and integrate surrogate moms into our societal framework. There is no plan whatsoever in this direction. Instead, we get a bill that almost brings surrogacy to a standstill."
"If surrogacy is out of bounds for queer persons, has the government strengthened its policy for adoption by queer persons? The answer is a loud "no". There are enough studies in the west that prove that queer persons make good parents, not as good as but better than heterosexual persons," he added.
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