New Delhi: Criticising the Centre’s draft Surrogacy (Regulation) Bill, 2016 for having a “narrow” understanding of Indian society and playing into patriarchal assumptions, the parliamentary panel that was set up to look into the Bill’s provisions and speak to experts in the field has recommended broadening the Bill’s purview and a more liberal surrogacy framework in an 88-page report.
No such thing as purely ‘altruistic’ surrogacy
The original Bill wanted to do away with commercial surrogacy and instead base it on ‘altruism’. The surrogate has to be a close relative of the married couple in question (who must be infertile, of Indian origin, married for at least five years and between 23-50 – for women – and 26-55 – for men – years of age). A woman can act as a surrogate only once, the Bill said, while she is between 25 and 35 years of age.
This definition of ‘altruistic’ surrogacy, the 31-member has said in its report, cannot work in a patriarchal structure. The surrogate is likely to be coerced and will get nothing out of this arrangement, while everyone else will benefit, reinforcing the idea that a woman’s body is not her own.
Pregnancy is not a one minute job but a labour of nine months with far reaching implications regarding her health, her time and her family. In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism without a single penny.
The Committee, therefore, finds merit in the argument that the proposed altruistic surrogacy is far removed from the ground realities. The Committee is, therefore, of the view that expecting a woman, that too, a close relative to be altruistic enough to become a surrogate and endure all hardships of the surrogacy procedure in the pregnancy period and post partum period is tantamount to a another form of exploitation.
The Bill limits the circle of choosing a surrogate mother from within close relatives. Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member. A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy. The Committee, therefore, firmly believes that altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism.
The committee hailed the fact that regulation was need in the surrogacy sector, given the economic and social power imbalance that exists between the actors in most cases, but said the regulations should be of a different kind than what is suggested in the Bill, like authorities fixing the compensation amount to be paid to a surrogate and making sure that payments begin the moment the process is started. The panel agrees that no women should be a surrogate more than once – “surrogacy cannot be a way out for women opting for surrogacy due to poverty and should not be allowed as a profession”.
Shouldn’t be limited to married couples
The provision that only Indian couples who have been married for at least five years can avail of a surrogate “overlooks a large section of society,” the panel has argued.
The Department of Health Research by imposing prohibition on widows and divorced women seems to have closed its eyes to the ground reality. Besides, the decision to keep live-in partners out of the purview of the Bill is indicative of the fact that the Bill is not in consonance with the present day modern social milieu that we live in and is “too narrow” in its understanding. Even the Supreme Court has given a legal sanctity to live-in relationships. Surrogacy is one of the least used options by childless Indians. If all these categories are to be banned then why have surrogacy at all. The Committee, therefore, recommends that the Department should broadbase the eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, divorced women/ widows.
The report also recommends doing away with the “five-year waiting period” meant for couples to “avail all assisted reproductive techniques to have a child of their own,” saying it does not make sense as the couples involved may already be in their 30s and 40s. This waiting period is also inconsistent with the WHO’s definition of ‘infertility’, the committee has argued, which defines infertility as the inability to conceive after at least “one year of unprotected coitus”.
The committee stood by the provision that surrogacy be limited to Indian citizens, saying foreigners only come to India to find surrogates because it is much cheaper here.
One of the other criticisms of the Bill was that it left out homosexual couples. But the report does not say anything about that.
Surrogates should not be limited to close family members
The Bill’s provision that a surrogate must a 25-35-year-old woman who is a close relative of the couple and has one child of her has been criticised by the committee on various grounds. For one, they have said the woman may be coerced into doing it by her family against her wishes. Two, the child and surrogate mother will be living in close proximity given the nature of Indian families, and this could have a detrimental impact on both their mental heath. Three, most nuclear families may find it hard to find someone in their family who fits all the criteria. Four, couples who want to keep the surrogacy private won’t have that option and will be forced to tell their families, despite the social taboos involved. Given all of this,
The Committee is convinced that limiting the practice of surrogacy to close relatives is not only non pragmatic and unworkable but also has no connect with the object to stop exploitation of surrogates envisaged in the proposed legislation. The Committee, therefore, recommends that this clause of “close relative” should be removed to widen the scope of getting surrogate mothers from outside the close confines of the family of intending couple. In fact, both related and unrelated women should be permitted to become a surrogate.
Finding non-existent doctors
One of the committee’s other recommendations is based on the Bill’s definition of a ‘human embryologist’. According to the Bill, “‘human embryologist’ means a person who possesses any post-graduate medical qualification in the field of human embryology recognized under the Indian Medical Council Act, 1956 or who possesses a post-graduate degree in human embryology from a recognized university with not less than two years of clinical experience”. However, the committee has noted in its report, no such “post-graduate degree in human embryology” is offered at an Indian university, so this definition must be rephrased so people know what sort of specialty doctors they should be consulting. As it stands now,
The Committee fails to understand how the Department would utilize the services of such specialty doctors in every corner of the country when these doctors do not exist.
Keeping track of cases
In order to make sure that regulations around surrogacy are followed, the committee has recommended the creation of a national database where surrogacy cases are tracked from start to finish.
Having a centralized database at the National level would be a step in right direction so as to monitor the surrogates, surrogacy clinics and the commissioning parents. All State Surrogacy Boards should be required to submit to the National Surrogacy Board, data on the surrogacy services and arrangements. Therefore, the Committee is in unison with the suggestion of keeping a registry at the national level having details of the registration and conduct of every surrogacy clinic, surrogacy arrangements, including its stakeholders, taking place across the country. Such a registry will also help in tracking the surrogate mothers who will act as surrogate only once in their lifetime