The courts have repeatedly stripped the surrogate of the little power she might have in such arrangements, a position the new bill is likely to take forward.
A few days ago, the cabinet approved the Surrogacy (Regulation) Bill, 2016, which called for a complete ban of commercial surrogacy and made it punishable with a minimum sentence of 10 years. The Bill proposes several modifications to the existing framework, from eligibility requirements to regulatory mechanisms. Foreign minister Sushma Swaraj repeatedly stressed on commercial surrogacy being against the ethos of the country, exploitative and a trade, but apart from criminalising it there seems to be nothing more to keep surrogacy in check. Further, there has been no elaboration on the position of the surrogate mother in the process – for instance, the safeguards for a surrogate and where she stands vis-à-vis the commissioning couple who were now a close family relation. Since, the legitimisation of commercial surrogacy in 2008, the rights enjoyed by the surrogate mother have been systematically overlooked. In most instances, she is reduced to nothing more than another process in the chain of (re)production.
Courts and the surrogate mother
The Supreme Court has since April suspended deliberations on surrogacy arrangements until the enactment of a law on it. Prior to this there have been few instances where courts have had to deliberate on issues that arose from surrogacy arrangements. With every successive case, the courts have expanded the meaning of motherhood not only to include the commissioning mother but also to actively exclude the surrogate from it.
Perhaps the first step in evolving the meaning of parenthood vis-à-vis surrogacy was taken by the Madras high court in K. Kalaiselvi v. Chennai Port Trust. The question that arose was whether the petitioner, who had a child via commercial surrogacy, was entitled to maternity leave. While granting the petitioner maternity leave, the court noted:
This court does not find anything immoral and unethical about the petitioner having obtained a child through surrogate arrangement. For all practical purpose, the petitioner is the mother of the girl child G.K.Sharanya and her husband is the father of the said child. When once it is admitted that the said minor child is the daughter of the petitioner and at the time of the application, she was only one day old, she is entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Leave Regulations. The purpose of the said rule is for proper bonding between the child and parents.
The court in this case recognised the rights of the petitioner with respect to the child on the basis of the admission of all parties that the child is the daughter of the petitioner. Thus, the court first ruled out a challenge to the maternity and then conferred it to the petitioner post delivery.
This interpretation was slightly modified by the Kerala high court. While deciding a similar petition, the court noted that there should not be any discrimination on the basis of the means of maternity or the fact that the commissioning mother herself did not undergo the pregnancy. On the question of maternity the court observed that from the moment the child is born, the commissioning mother is to be treated as the mother of the child. As opposed to in the Kalaiselvi case, the Kerala high court unilaterally located the maternal rights with the commissioning mother post-delivery. In this manner, the court very clearly negated any right of the surrogate mother with respect to the child post-delivery. With regard to motherhood the court noted:
It (motherhood) is no longer one indivisible instinct of mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on.
The above interpretation reduces the surrogate to a passive, inanimate receptacle that holds the child till it is ready to be delivered. However, despite the issues associated with the court recognising the maternity of the commissioning mother only post-delivery, the court seems to at least recognise the rights of the surrogate with regards to the child during the pregnancy.
But even this limited right was curtailed by the Delhi high court in Rama Pandey v. Union of India. The case also dealt with the question of maternity leave in cases of children obtained via surrogacy. While interpreting motherhood, the court noted:
In my opinion, where a surrogacy arrangement is in place, the commissioning mother continues to remain the legal mother of the child, both during and after the pregnancy. To cite an example: suppose on account of a disagreement between the surrogate mother and the commissioning parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within the period permissible in law for termination of pregnancy – quite clearly, to my mind, the commissioning parents would have a legal right to restrain the surrogate mother from taking any such action which may be detrimental to the interest of the child. The legal basis for the court to entertain such a plea would, in my view, be, amongst others, the fact that the commissioning mother is the legal mother of the child. The basis for reaching such a conclusion is that, surrogacy, is recognized as a lawful agreement in the eyes of law in this country. [See Baby Manji Yamada v. Union of India, (2008) 13 SCC 518]
As opposed to the previous interpretations in the Rama Pandey case, the court located the maternal rights of the commissioning mother right from conception. Not only does this interpretation negate any maternity rights of the surrogate mother, it also vests control over the surrogate’s body to the commissioning couple. The rational given for such an interpretation is the legality accorded to surrogacy arrangements by the Supreme Court in Baby Manjhi. This is a flawed reasoning as in Baby Manji the Court never went into the deeper aspects of surrogacy with regard to the rights of the parties concerned. Thus, citing the legality of agreement to rob the surrogate of rights otherwise recognised is not only an erroneous interpretation but also arbitrary and unjust. The Delhi high court in effect creates an arbitrary distinction between a woman who is pregnant and the surrogate. The result is the complete de-humanisation of the surrogate who is reduced to an entity, subject to the control of the commissioning couple for the course of the surrogacy. In this process, she is stripped of control over her body and any assertion of the same becomes a breach of her contract. Even the physiological changes undergone by the surrogate are given a secondary status compared to the onus on the commissioning mother to raise the child. It is also ironic that the court recognises the commissioning mother’s right to maternity leave but goes to lengths to negate the reproductive labour of the surrogate.
The courts have thus worked towards not only championing the rights of the commissioning mother but effectively stripping the surrogate of the little power she might have in the arrangement. By severing the rights of the surrogate and the child she bears, the courts re-affirm parenthood within the strict confines of genes and heredity. While such a reductionist interpretation is extremely problematic even if one agrees with it and accepts that the surrogate mother should not have any rights over the child she has carried for nine months, it still raises questions about role and rights of the surrogate in the arrangement. Recognising the commissioning couple’s rights over the child in the womb translates into control over the body of the surrogate for the duration of the pregnancy.
Frankly, we don’t know, as the entire text of the Bill is yet to be made public. Swaraj went to lengths to list the duty of the commissioning couple, including accepting the child completely and treating it as a biological child, but remained silent on the rights of the surrogate mother. Some of the questions that remained unanswered include: would the surrogate be allowed to abort the child in the first trimester on her own or would it be decided by the commissioning couple? Would the surrogate have to conform to the wishes of the commissioning couple during the pregnancy under the guise of the welfare of the child? How does the Bill aim to tackle the very patriarchal nature of Indian families where the ‘close family relation’ might not be allowed the space to exercise her agency or be ostracised for exercising it?
Swaraj is correct when she states that several women are exploited through forced commercial surrogacy arrangements. But surrogacy arrangements may be coerced even in familial relations; the mere absence of money does not remove the exploitative aspect from the arrangement.
A study I conducted in 2013 on commercial surrogacy in India (published by Tata Institute of Social Sciences) brought to fore the fact that it is financial necessity and economic security that compelled women to enter into surrogacy arrangements. Many women I spoke to in the course of the study said that if they could get other jobs they would not have become surrogates. It is this very reality that should also caution the state against a complete ban. The extreme poverty, and lack of social and economic security will continue even after a ban. Thus, similar to organ trade, the ban will only push the powerful and prosperous surrogacy industry underground. This, in effect, will make the surrogate even more vulnerable than at present through the added threat of prosecution.
The debates surrounding surrogacy should go beyond ethics and morality, and should take into consideration the larger political economy that not only compels women to become surrogates but also sustains the industry. The need of the hour is a well-thought out and cogent policy/law to safeguard the interests of the most vulnerable in the process – the surrogates. A simplistic ban is not the answer.