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While the introduction of draft Surrogacy (Regulation) Bill, 2016, is a welcome step towards plugging the existing regulatory vacuum in the commissioning of surrogacy in India, the provisions spelt out under the draft bill reek of regulatory overreach and a flawed mechanism.
With the approval of the draft Surrogacy Bill last week, the Union Cabinet hopes to prevent the exploitation of women who, in exchange for a ‘fee’, act as surrogate mothers and rent their womb out. The need to regulate this $2-billion industry arose from incidents where the contracts were not honoured. In particular, it was the case of the Japanese doctor couple that commissioned a surrogacy in 2008, but was divorced by the time the baby was born, leaving the baby parentless and without citizenship. Another trigger for the government was the case of an Australian couple that, in 2012, abandoned one of the twin babies born out of their commissioned surrogacy because that baby was born with Down syndrome.
^ Baby Gammy, born with Down Syndrome to his Thai mother Pattaramon Chanbua, was abandoned by the Australian couple that commissioned his birth. | AP
In essence, the Bill has banned commercial surrogacy and has limited it to heterosexual couples that have been legally married for five years or more, have no children, and have a close female relative whom they can convince to altruistically bear their child for nine months. There are many things that are arbitrary about this Bill. For instance, the five-year time period, the bar against homosexual or single parents, and the requirement that the surrogates be altruistic.
To be fair, by legalising surrogacy the government has rightly moved to pull the issue out of the grey area in which it has so far been. However, what is disturbing is the regulatory mechanism that the Indian government has chosen to employ.
By imposing a ban on commercial surrogacy, the Bill might do more harm to women than was previously done. The demand for surrogacy is not going to suddenly vanish and the proposed Bill will only result in the creation of an illegal market that might make surrogate mothers more vulnerable to exploitation and without any avenues for legal recourse when contracts are broken.
It would be wise to acknowledge that wherever a gaping hole in demand and legal supply for any product emerges, black markets have been known to surface and thrive. Illegal organ trade is one such example. Indeed, banning the sale of one’s own organs (Transplantation of Human Organs and Tissues Act, 2011) and restricting donations to only close relatives and other altruist donors has not come in the way of India being one of the biggest organ markets, especially for kidneys. Similarly, Nancy Howell has pointed out in her 1969 book, >The Search for an Abortionist , how criminalising abortion had resulted in illegal abortion trade in the U.S.
Further, as per Article 14 of the Indian Constitution all citizens are equal before the law. By placing restrictions on the right to have a surrogate child such that it is accorded to heterosexual couples alone, the government has negated the equality that the Constitution guarantees to single parents and homosexuals. Moreover, as per a Supreme Court ruling, live-in relationships are on a par with marriage and children born out of long-standing live-in relationships are legitimate. By limiting the option of surrogacy to legally married couples, the government is countering the acceptability of live-in relationships and setting a wrong precedent.
In fact, the draft Bill is not just laden with ideological and ethical issues but it will be nigh-on impossible to enforce. Eugene Bardach correctly points out in his book on policy analysis that regulating entry is laden with “problems of collecting information”. By proposing to regulate who can apply for surrogacy and who can be a surrogate mother, the government is plunging into an area that will be beset with problems of data verification that will make the Act (if it were to be passed in its current form) unimplementable.
If the intent of the Bill is to protect surrogate mothers and the children born out of surrogacy, then the legislation must provide a legal framework that restricts the exploitation of the surrogates and the children, and penalise those who do not honour contracts. The government should ensure that the surrogates are properly counseled about the medical and economic implications of surrogacy. It should also ensure that all surrogacy contracts must mandatorily cover the medical care, hygiene, and nourishment of the surrogates not just during the pregnancy but also in the post-partum period.
Further, it should act to remove any information asymmetry that encourages the role of middlemen and puts the surrogates at the risk of being cheated.
The decision to rent or sell one’s vagina, the kidneys, or the womb should be the prerogative of the owner. Criminalising such trades neither ends the practice nor alleviates the condition of people who choose to enter them. The Surrogacy (Regulation) Bill, 2016, in its current avatar, is a retrograde step that the government must amend if it really cares about women’s welfare. And if it cared enough, it would remove the conditions that force people into renting their wombs out.