Commercial surrogacy is when a woman carries a baby for another couple and give it to them after the birth, usually for money. The woman can either be the child’s genetic mother or merely a gestational carrier of the implanted embryo of the couple.
Commercial surrogacy was first permitted in 2002 in India. It has been flourishing since then and today, accounts for a large share of earnings from medical tourism in India. According to some reports, per year, more than 25,000 surrogate children get birth in the country.
There have been no legal rules to regulate this rapidly expanding sector till now. Certain cases sparked a debate over legal and ethical aspects of this practice in which a woman has to rent her womb for the sake of money. One such incident happened in 2008 when a surrogate child of a Japanese couple was rendered stateless and parent-less since the couple had separated before her birth and surrogacy is not legal in Japan. Similarly, in 2012, an Australian couple refused to take one of the twins born to a single mother who got involved in the agreement to earn some money due to poverty. Also, the middlemen often lure poor women for money and keep a large chunk of payment for themselves.
In light of all such debatable incidents, the government recently introduced draft Surrogacy (Regulation) Bill 2016, banning commercial surrogacy in India. Most of the countries do not permit commercial surrogacy and, as per the govertment, the proposed law is in line with the global practice. However, there are certain provisions in the bill which have sparked a debate over role of the govertment in deciding the ethics of procreation.
The draft bill bans commercial surrogacy but permits ‘altruistic surrogacy’ as an option for couples who have been married for five years, who can not naturally have children and can find a surrogate mother among their close relatives. The surrogate child will have all the rights which are available to a biological child. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.Couples who already have biological or adopted children cannot commission a surrogate child. Registered surrogacy clinics will have to maintain all records for a minimum of 25 years.
The first criticism is that the bill violate a woman’s fundamental right to personal liberty. Second criticism is regarding discrimination against certain section of society like, unmarried couple, homosexuals etc., the bill violate their fundamental right to equality mentioned in the the Indian constitution.
The bill assumes that the exploitation is restricted to only those women who become surrogate mothers for money. But in a patriarchal society like ours, the provision of ‘altruistic surrogacy’ may also push a woman into surrogacy due to coercion of family ties. A complete ban on commercial surrogacy may lead to underground operation of the industry or even its shift to neighbouring countries, for example, imposition of ban on gay surrogacy in 2013 led to shifting of Indian surrogates to Nepal.
The bill will now be placed before the parliament. Sincere debate and public deliberation is required to address all the relevant issues before it is enacted as a law. There should be no such provision which dilutes the whole idea behind introduction of this bill.