Context: The Supreme Court on Tuesday questioned whether a single, unmarried woman having a child through surrogacy is an “accepted norm” in Indian society or not.
The act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
Surrogacy can be classified into altruistic and commercial.
- True to the meaning of the word, altruistic surrogacy entails no financial compensation for the surrogate.
- In contrast, commercial surrogacy involves paying the surrogate for bearing the child, implying a profit,
- while a third type i.e. compensated surrogacy simply involves covering the incurred expenses and loss of wages.
Surrogacy (Regulation) Act, 2021
- It defines the surrogacy as we have discussed earlier.
- The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
- It provides for Eligibility criteria for intending couples:
- Further, this act also specifies the eligibility criteria:
- Surrogacy is permitted only for those intending married Indian couples who suffer from proven infertility.
- An Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
- Further it lays eligibility criteria for the surrogate mother also which specifies that she must be close relative of the intending couple, she must be a surrogate only once in her lifetime; and the surrogate mother cannot provide her own gametes for surrogacy.
Concerns
- Exclusionary: The provisions deny this opportunity to LGBTQ+ persons, live-in couples, unmarried women and single parents.
- Altruistic surrogacy is paternalistic - It expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’. Thus reinforcing age old patriarchal norm of no economic value to the women’s work.
- It doesn’t respect the bodily autonomy of women - By shifting from right based to need based approach it snatches away the right of a women to decide upon her reproductive choices. Further it is and violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
- Impetus to Black marketing- Blanket ban on commercial surrogacy may lead to creation of unregulated, exploitative underground/black markets.
- Does not defines close relative - The act didn’t define ‘close relative’, which is a condition to be fulfilled by the surrogate mother. Thus scope for confusion and exploitation of loop holes is always there.
- Reproductive liberty to the couples - Several restriction in form of eligibility criteria etc restricts the surrogacy option to intending couple which is a denial of reproductive liberty to them.
- No power to make decision on abortion - Intending couple don’t have final say in the consent to abort a surrogate child, even if the child being born out of a surrogacy arrangement is at the risk of physical or mental abnormalities.
- Identity and emotional aspect - Several times couples do not want to reveal their plans of oping for surrogacy, now putting the condition of close relative to be a surrogate clearly ignores this aspect and restricts the choices. Further, familial bonds and interaction may involve high emotional complications between surrogate mother and intended parents.
Way ahead
It is essential that, in the process of addressing the exploitation of surrogate mothers, the act should be revised to establish a comprehensive and inclusive procedure. This revised procedure should aim to make surrogacy readily accessible to the deserving citizens of India.