Republic of Unreason

If Parliament were to pass the Surrogacy Bill in its present form, the law would certainly violate the constitutional pledge of equal treatment

Updated - October 01, 2016 10:11 pm IST

Published - September 01, 2016 12:18 am IST

Illustration: Keshav

Illustration: Keshav

In August 2011, Premila Vaghela, 30, the wife of a daily-wage labourer from a poor Ahmedabad suburb, had agreed to become a surrogate mother for an American couple. She thought that by renting her womb for money she could provide a better education for her own two children. But eight months into her pregnancy, in what was meant to be a standard medical visit, she crumpled to the floor of her doctors’ clinic, clutching her stomach in agony. She died four days later. But the baby survived.

Although there is no specific indication of any wrongdoing (the police recorded Vaghela’s death as “accidental”) the doctors’ priorities were clear from the terms of the surrogacy contract that she had signed. Not only did this agreement (typical of all commercial surrogacy arrangements) absolve the doctors and the foreign couple of any liability, it also noted that the surrogate and her husband had agreed that if Vaghela suffered an injury or a life-threatening instance during the third trimester of her pregnancy, she “will be sustained with life support equipment to protect the foetus’ viability and insure a healthy birth on the genetic parents’ behalf”.

Clampdown on commercial surrogacy Conventionally, commercial surrogacy involves an agreement in which a woman, in exchange for money, agrees to carry a child for another person to whom she will surrender the child when it is born. The woman can either be the child’s genetic mother — which is the more traditional form of surrogacy — or, alternatively, if implanted with an embryo, she could merely be a gestational carrier owning no genetic connection to the child whatsoever. Since 2002, when the Indian Council for Medical Research issued a set of non-binding regulations that envisaged transactional surrogacy, these forms of arrangements have flourished in India. According to some reports, the assisted-reproduction sector may now be worth as high as $2 billion, with more than 25,000 surrogate children being born every year in the country. But in the absence of any legislation controlling the industry, Vaghela’s case has scarcely proved an exception.

It is perhaps with these considerations in mind that the Union Cabinet, last week, >approved the draft of the Surrogacy (Regulation) Bill, 2016 . The proposed legislation, in short, seeks to ban commercial surrogacy altogether, while limiting the availability of what the Bill terms as “altruistic surrogacy” to childless, heterosexual Indian couples married for at least five years. That is, persons who are eligible to seek surrogacy are required to engage a close female relative, not necessarily related by blood, in a transaction where no money exchanges hands between the commissioning couple and the surrogate mother, except to meet medical expenses. Unfortunately, though, well-intentioned as the proposal might appear at first blush, the Bill fails to address the moral questions at the roots of the controversy, and, if ultimately enacted into law, would also transgress some of the Constitution’s core guarantees.

The arguments at stake Now, there is little doubting that any reasonable government ought to concern itself at some level with the ethics of procreation, especially given the power equations at play in a contract of surrogacy. But is a complete proscription on commercial surrogacy a neutral position to take? There are two basic arguments against such a ban. First, that people, both foreigners and Indians, have a fundamental right to procreate, and to choose whichever method they desire to achieve this objective. This affirmative argument in favour of a right to use assisted-reproductive technology, though, as the Harvard Law School professor Martha A. Field has explained, fails for the reason that surrogacy involves using another person’s body, albeit with their ostensible consent. “A personal right to do something,” Field wrote, “does not necessarily carry over to a right to enlist the assistance of another.” That surrogacy hasn’t been previously regulated also does not now give a person a specific constitutional right to procreate. After all, every practice tolerated by the state doesn’t emanate out of a pre-existing natural or positive right. What’s more, in any event, given that an infertile couple could take recourse to adopting a child, a ban on commercial surrogacy doesn’t necessarily affect one’s right to raise a family.

The second argument — a classically libertarian one — that women have a fundamental right to contract, and a fundamental right to personal liberty, which together permit them to use their bodies as they please, however, cannot be readily dismissed. As Amrita Pande wrote in The Hindu , in the absence of any evidence that shows that all economic choices made by a woman are uninfluenced by a lack of informed consent, denying Indian women the ability to enter into contracts of surrogacy alone might seem misplaced. But the philosophical basis for such an argument may not quite be carved in stone. From the 1980s onwards many feminist scholars — Andrea Dworkin the most prominent among them — have warned against the commodification of surrogacy in an inherently unequal world. For Dworkin, surrogacy is like prostitution, because the surrogate has no choice. The questions that concern the validity of a commercial surrogacy agreement, she wrote, are not indifferent from those concerning prostitution. When the state has “constructed the social, economic, and political situation in which the sale of some sexual or reproductive capacity is necessary to the survival of women,” Dworkin wrote, to believe that such women are exercising their free will in choosing to sell the use of their womb in a commercial transaction is simply amoral.

Dworkin’s claims, from an Indian context, are only bolstered by the boilerplate terms of the surrogate contract, which tend to deeply undermine the surrogate mother’s freedom and sense of bodily autonomy. Her assertions, therefore, provide the state a legitimate constitutional reason for restricting surrogacy altogether. After all, similar concerns about agency and free will were at play when the Union government brought into force the Transplantation of Human Organs Act in 1994. Prior to the enactment of this law, organ trading for commercial consideration was legal. As the Andhra Pradesh High Court observed in upholding this legislation, “whether the law intended to prohibit dealing in human organs or not… no one could or can deal in human organs as a matter of right.”

A didactic approach While a complete ban on surrogacy is capable of being legally justified — even if it arguably makes for poor strategy — the Bill’s proposal to allow altruistic surrogacy for certain classes of persons is not only indefensible but is also scandalous in that it exemplifies the government’s didactic ambitions. Under India’s constitutional structure, every time a law seeks to treat equal persons differently, it must justify the classification that it so makes with cogent reasons. First, the distinction that the law draws must be intelligible; the classes of persons sliced out by the law must be capable of being easily ascertained. And second, the state must show that there is a rational nexus between the object that the law seeks to achieve and the classification that it makes.

In the case of the Surrogacy Bill the object of the proposed law is ostensibly to curb the exploitation of poor women who often act as surrogate mothers. It’s hard to understand, though, how such an object can bear any relation to the classification that the Bill makes in distinguishing couples married for five years or more from all others, including live-in couples, single parents, and those from the LGBT community. “We do not recognise homosexual or live-in relationships, that is why they are not allowed to commission babies through surrogacy,” said External Affairs Minister Sushma Swaraj, while announcing the Cabinet’s approval of the Bill. “It is against our ethos.” These professed reasons though neither emanate out of any legitimate governmental interest nor do they contain any link to the Bill’s object and purpose. They merely comprise the state’s expression of disgust at practices that it deems depraved. If Parliament were to pass the Surrogacy Bill in its present form, the law would certainly violate the constitutional pledge of equal treatment.

Flawed assumptions at play What’s more, in seeking to permit altruistic surrogacy alone, the Bill also makes a curious, and flawed, assumption: that if a woman is not being paid to be a surrogate, she isn’t being exploited in any manner; that questions involving free will are somehow applicable only to cases of commercial surrogacy. But the notion that surrogacy can at all be altruistic, as the Swedish journalist Kajsa Ekis Ekman wrote earlier this year in The Guardian , “— apart from being a red herring, since it barely happens in reality — has a very strange ideological underpinning. As if exploitation only consisted in giving the woman money. In that case, the less she is paid, the less she is exploited.”

A complete ban on commercial surrogacy may not altogether remedy the situation faced by those such as Vaghela — there is after all a belief, in many quarters, that such a law would tantamount to reacting to moral panic. However, regardless of its constitutional permissibility, given the lack of consensus on such a complete ban, it would be prudent to conduct a wider public deliberation before the prohibition is enforced as law. But what is certainly unhelpful is the proposal to permit only a limited form of altruistic surrogacy. This represents bad social policy, and, if such an exception fructifies into legislation, would also be forbidden under our constitutional structure. India, to borrow a phrase used by the American legal scholar Cass Sunstein, is meant to be a “Republic of Reasons”. The Surrogacy (Regulation) Bill, 2016, regrettably flouts this vision.

Suhrith Parthasarathy is an advocate practising at the Madras High Court.

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