It is intriguing to observe how our approach to issues that impact women see-saws wildly from cautiously progressive to extraordinarily regressive. Within months of being shocked by the Minister for Women and Child Development declaring that marital rape cannot be criminalised in India, we were handed an enlightened judgement that allowed a woman to terminate her pregnancy even after 24 weeks on the grounds that she did not want a child conceived by rape. But before we could breathe with relief, we now have a Bill seeking to regulate surrogacy in ways that appear framed in the Dark Ages.
Whether marital rape, abortion or surrogacy, justice will be done only when laws are premised on the basic right of a woman over her body. No, let me rephrase that: the basic right of every individual, regardless of gender, over their body and their personal lives. If this could become the guiding legislative principle, our law-making might look less befuddled.
There are many people desperate to have a child. Not an adopted child, but a piece of their own genetic material. If science has advanced far enough to allow them to do this by using the womb of another woman, and the surrogate is acting under free will and the process is proven safe, then the government’s job is to ease access to this new technology by providing legal protection to all the parties, not to make access arduous and preventative.
Commentators equate commercial surrogacy with commercial organ donation or commercial sex work. In all cases, there is a sale of a part of a human body, and yes, exploitation is inevitable. The crucial denominator for law-making in all these instances has to be the differentiation between voluntary and involuntary; protecting the trafficked or abused person without harassing the legitimate sex worker or surrogate mother. Instead, our law-making and law-keeping inevitably tries to prevent misuse by banning all use. This is reductionist, paternalistic and escapist.
Just as a sex worker must be paid a fair wage, so must a surrogate. By ruling that only close family members can offer their wombs and must do so for free, the government is not preventing exploitation. It is instead launching an inevitable black market. It is also simultaneously opening the door wide to some khap panchayat somewhere decreeing that the wife of the second son must bear the child of the first son and his wife, or else off with her head.
What we need to regulate surrogacy is a simple and airtight law that protects it from touts, quacks and rogues. Not a moral lecture that tells you who can be parents and how. Why should only married couples have access to surrogacy? The increasingly anachronistic institution of heterosexual marriage makes nothing safer. What matters is that some people willingly want to take on the ethical and legal responsibility of raising a child. It makes no difference if they are both men or both women or a single man or a single woman or a single man and a teddy bear.
A family is a social unit meant to raise a child. It doesn’t need a rigid formula or marriage licence to sanctify it. Such families might be fractured from a conservative perspective, might not qualify as sanskaari enough, but they are completely adequate safe havens for a child.
What surrogates (and the commissioning parents) need from the government are licences and registrations, contracts and confidentiality agreements, top-notch clinics and embryo banks, the best doctors and processes. In short, legal and medical protection, and not a medieval morality play.
Finally, as Indians, we should be especially open to surrogacy and donor parenting. How many of our mythical kings requested benevolent rishis to dispense convenient er... potions to queens unable to bear children? How many queens were mysteriously impregnated by sun and moon and fire gods? And, incidentally, you do know that Devaki’s seventh child, a daughter, was magically moved to Rohini’s womb, don’t you?
