India’s commercial surrogacy industry, once a $400 million-a-year business, may now be on the verge of shutting down. In July, the Indian Parliament’s lower house, Lok Sabha, passed the Surrogacy (Regulation) Bill, 2019, a piece of legislation that would completely ban commercial surrogacy and sharply limit altruistic surrogacy. The bill is now pending before the upper house of the Parliament, Rajya Sabha, and is on its way to become the law of the land.
The Indian government is touting the bill as a progressive measure meant to curtail the potentially exploitative practice of “baby outsourcing.” But, as a legal development researcher and a proponent of women’s rights, I see the sweeping ban as something much more regressive: It essentially strips women of autonomy over our own bodies and, in the process, violates our basic civil and fundamental rights.
The legislation is the culmination of more than a decade of efforts to regulate the surrogacy industry in India. In 2005, in response to a boom in demand driven largely by foreign nationals, the Indian government adopted regulatory guidelines aimed at rooting out illegal clinics and exploitation of surrogates. In 2015, the government banned surrogacy for foreign nationals outright. Throughout the years, legislation to regulate reproductive techniques associated with surrogacy, such as in-vitro fertilization and artificial insemination, has been proposed but has never passed.
The new proposal to ban commercial surrogacy is essentially a rehash of a bill that was proposed three years ago — the Surrogacy (Regulation) Bill, 2016 — which lapsed when Parliament adjourned without taking the measure for a vote. The Indian minister for health has called the 2019 bill a “need of the hour,” citing a rough estimate that between 2,000 and 3,000 unregulated clinics currently operate in the country.
In passing the bill, however, Lok Sabha members join a long tradition of Indian Parliament members banning things they cannot possibly comprehend. There has been no comprehensive study conducted in India documenting the growth of the surrogacy industry or even the extent of alleged malpractices around it. And there is little indication that lawmakers have considered the inter-sectional aspects of how the law would impact women’s right to their bodies.
Under the new law, anyone who performs or promotes commercial surrogacy would be punished with up to 10 years of imprisonment and a fine of up to one million rupees (approximately $14,000). The law would also punish anyone who exploits a surrogate mother, abandons, exploits, or disowns a surrogate child, or sells or imports a human embryo or gamete for surrogacy.
With few exceptions, Indian couples opting for surrogacy would be required to obtain “certificates of essentiality and proven infertility” demonstrating that they have been married for five years, that they have no existing or surviving children, and that at least one of the partners is infertile. The husband must be 26 to 55 years of age, and the wife must be between 23 and 50. The surrogate would have to be married, be between 25 and 35 years of age, and be a “close relative” of the intending couple. She would have to have a child of her own, and she could be a surrogate only once in her lifetime. She, too, would have to obtain a certificate testifying to her mental and physical capacity to be a surrogate.
The flaws of this legislation are almost too numerous to list.
For one, it places undue restrictions on would-be surrogates’ bodily autonomy and reproductive rights. The government has offered no logical rationale for why unwed and childless women should not be surrogates. With the absence of such a justification, the decision of any physically and mentally fit woman to go ahead with a surrogacy arrangement should be her decision alone.
Indian courts have, on multiple occasions, held that the right to make reproductive choices falls under the “personal liberty” guaranteed by Article 21 of the Indian Constitution. These reproductive rights of women include the rights to carry a baby to term, give birth, and raise children. They also include rights to privacy, dignity, and bodily integrity. The Supreme Court has further held that the right to reproduction forms an integral part of the right to life guaranteed under the same Article. The state’s action to curtail the reproductive choices of women violates these fundamental constitutional provisions.
The surrogacy bill’s provision restricting surrogacy to married heterosexual couples within strict age ranges also discriminates against members of the LGBT community, older couples, and unmarried people who might seek to have children. The bill not only violates their right to personal liberty, it goes against the principles of equality provided under Article 14 of the Indian Constitution.
Furthermore, the bill’s definition of infertility — used to establish couples’ eligibility for surrogacy — is overly narrow. It covers only “those couples who are not able to conceive after five years of unprotected coitus.” It does not cover partners who suffer from medical conditions, such as uterine fibroids, that may allow a woman to conceive but prevent her from carrying a baby to term. It also does not cover women who simply do not wish to carry a child to term.
The list of injustices goes on: The bill gives the biological parents no say in whether to continue or terminate a pregnancy; it criminalises not only the women who serve as commercial surrogates but also their spouses and relatives; and a legal framing that shifts the burden of proof onto those spouses and relatives could lead to an increase in malicious prosecutions.
Although the practice of surrogacy may seem morally repugnant and unorthodox to some people, there remains this inescapable fact: It was an important source of income to many women in India — particularly women from economically disadvantaged backgrounds. If this bill becomes law, the impact on these women’s lives will be consequential.
That is not to say that commercial surrogacy doesn’t have its malpractices. Surrogates are often underpaid, blackmailed, or extorted, and they commonly lack legal protections and adequate health insurance. Many women become surrogates without having properly verified their fitness to carry a healthy baby to term. These are just a few of the many byproducts of an improperly regulated industry. However, they do not warrant a complete ban.
Even the Parliamentary Standing Committee on the 2016 surrogacy regulation bill recognized drawbacks of restricting surrogacy exclusively to altruistic cases. In a report on the bill, the committee remarked that the proposed altruistic surrogacy model “is based more on moralistic assumptions than on any scientific criteria,” and that “all kinds of value judgments have been injected into it in a paternalistic manner.” The committee recommended replacing “altruistic” surrogacy with “compensated” surrogacy to indicate that a range of monetary payments to the surrogate mothers should be permitted as reasonable compensation. These recommendations were categorically ignored in the 2019 surrogacy bill, which preserves the original language from the 2016 proposal.
The Surrogacy (Regulation) Bill, 2019 is a regressive piece of legislation that includes spine-chillingly intrusive provisions reminiscent of Margaret Atwood’s “The Handmaid’s Tale.” If enacted as the law of the land, it could be a first step toward a Gileadean dystopian future devoid of basic civil rights and freedoms. The Rajya Sabha should vote it down, though it’s unlikely that they will. If they don’t, we can only hope that the law will be put before the judiciary and declared unconstitutional.
Shonottra Kumar is an India-based legal development professional and a staunch advocate for the rights of women, children, and marginalised communities. She is working in the scheme of access to justice, promoting informed decision-making through her work.