Why the government banned Commercial Surrogacy in India rather than regulating it?
According to the Surrogacy (Regulation) Bill, 2019 Commercial surrogacy will soon be banned and now only close relatives will be permitted to act as surrogates to infertile couples for “ethical altruistic” reasons.
Surrogacy will be allowed only in the “altruistic form”, referring to where the surrogate mother does not receive monetary expenses. This will be available only to Indian couples married for at least five years with proven infertility. The same bill provides for constitution of surrogacy boards at national and state levels, also that the intending couples should not abandon such a child under any condition.
In recent years, India emerged as a hub of commercial surrogacy with unregulated industry of almost 3000 clinics. The commercial surrogacy arrangement in India was an exchange of money for services and yet, clinics went to great extends for making money out of it without any government regulation.
There have been several cases on unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets of importing human embryos and gametes.
Few activists said banning commercial surrogacy will take away the livelihoods of women who surrogated by their consent and would deny women rights over their own bodies.
Major drawback of the bill is that it prevents single parents, same-sex couples, divorced or windowed person, transgender persons, live-in partners and foreign nationals from opting surrogacy. This makes it a regressive and discriminatory definition of a family by the government.
Gargi Mishra, a gender rights lawyer at Sama, a Delhi-based resource group working on issues related to women and health, said that “Now, by denying surrogacy to these groups, single parents, homosexuals, transgender, you are denying them their rights, making it a regressive or limited view of what a family is.” Surrogacy had “great emancipatory potential”, she added, for people who could not otherwise have children.
Altruistic surrogacy is allowed in most countries but has not proven to be a very successful model. Countries like, Australia, UK and Canada allow only altruistic surrogacy. When India allowed commercial surrogacy for foreign nationals, citizens of these countries flocked to India as altruistic surrogacy was never viable for them. Even in India, when a doctor suggests an infertile couple for surrogacy, altruistic surrogacy is the first option that is presented to them. But in reality many people don’t opt for it.
The reason why altruistic surrogacy has never been successful is that the infertile couples have to be dependent on the sympathy of a relative who can help them. Basically, the human right to become a parent cannot be based on the sympathy a family member feels for the infertile couples’ misery.
Looking at all the provisions mentioned, this bill is not even violating Article 14 and 21 of the Indian Constitution but also takes away a women’s right on her own body who consensually wants to become a surrogate mother.
