Questioning the Efficacy of India's Surrogacy (Regulation) Bill 2019
The Indian government's recent decision to introduce the Surrogacy (Regulation) Bill 2019 (the "2019 Bill") into Parliament, which proposes a complete ban on commercial surrogacy in India, has generated both widespread support and criticism in equal measure. While introducing the 2019 Bill, Health Minister Dr. Harsh Vardhan stated that the objective of the proposed legislation was to "end the exploitation of women who are lending their wombs for surrogacy." This article aims to test the provisions of the 2019 Bill against the Health Minister's stated objective. It will be argued that, while it is evident that the intention of the government in seeking to prevent the exploitation of Indian women is admirable, the legislative provisions of the 2019 Bill are fundamentally deficient. To understand why the Indian government is seeking to ban commercial surrogacy it is first necessary to explore the scale and history of the surrogacy industry in India.
Surrogacy in India: a vast and unregulated industry
From the outset, it is crucial to understand the distinction between “commercial” (defined here as a surrogacy arrangement in which a surrogate mother is compensated either monetarily or otherwise beyond the reimbursement of medical expenses) and "altruistic" surrogacy (where a surrogate mother is compensated solely for her medical expenses). Many developed nations such as Australia, Canada, Denmark, Germany, Italy, Spain, the Netherlands, and New Zealand have drawn a legal distinction between the two forms of surrogacy and banned the former whilst permitting the latter. This has also been the position under the laws of England and Wales since the passage of the 1985 Surrogacy Arrangements Act. In sharp contrast to this international consensus, commercial surrogacy is legal in a small minority of nations, such as the Russian Federation and India.
Commercial surrogacy in India has, until the introduction of the 2019 Bill, been largely unregulated. The sole exception to this was the introduction of guidelines by the Indian Council of Medical Research (ICMR) in 2005. However, it is important to note that these guidelines were for the supervision of surrogacy clinics only and were neither widely disseminated nor legally enforceable. The explicit legality of commercial surrogacy in India and its wholly unregulated nature made India an increasingly attractive destination for non-Indian citizens seeking surrogacy services. By 2012, surrogacy had become a vast industry in India estimated to be worth between £300 and £400 million annually. A 2012 UN report estimated that there were over 3,000 clinics offering surrogacy services in India, and more recent reports by the ICMR have estimated that there are over 200,000 private clinics that offer additional ancillary ART (Assisted Reproductive Technology) services across India.
A crucial factor that drove the expansion of the Indian surrogacy industry is the demand by external non-Indian citizens for commercial surrogacy services that are outlawed in those citizens' home countries. In 2012, a report by the Guardian estimated that around 50% of the 25,000 surrogate children born annually in India were "commissioned" by non-Indian parents. So widespread was the practice of "surrogacy tourism" that in 2018 senior Supreme Court advocate Madhavi Divan commented that India had inadvertently become the "surrogacy capital of the world.”
The phenomenon of "surrogacy tourism"
The reasons for India's attractiveness as a haven for non-citizens seeking surrogacy services are complex, but the author wishes to focus on two: (i) the enforceability of surrogacy contracts; and (ii) the cost of surrogacy services. Firstly, in many developed countries such as the United Kingdom which outlaw commercial surrogacy, the law stipulates that a surrogate mother is deemed to be the legal parent of any child she carries by default, unless and until an adoption or parental order is signed at a later date. A logical corollary of this is that surrogacy contracts, which set out the parties' respective expectations and govern parental rights, are not legally enforceable in the UK, leading to the possibility that a surrogate mother could potentially claim parental rights over the child she had been commissioned to carry. In sharp contrast to this, the explicit legality of commercial surrogacy and its unregulated nature in India meant that surrogacy contracts were enforceable and that prospective parents could therefore manage risk and retain a high level of contractual control over a surrogate mother.
Secondly, the relative cost of the surrogacy services offered by specialist clinics in India are significantly cheaper than the altruistic services of surrogates across the developed world. A report by Julie Bindel in the Guardian in 2016 uncovered that women were offering surrogacy services in India for as little as £4,500. Proponents of surrogacy in India often point out that surrogacy provides a source of significant income for some women in India. Less than a third of women in India, according to the latest data, are active participants in the workforce and many of these women are employed in the informal sector. According to both the World Bank and the Asian Development Bank, by most indicators more than 20% of Indians live below the national poverty line of $1.90 USD per day. Consequently, it is argued, the sums that can be earned via surrogacy, although relatively inexpensive for the non-citizens "commissioning" surrogacy services in India, are significant sources of income for surrogate mothers.
Yet despite this, it is the author's opinion that it is equally important to note that the surrogacy industry in India has been constantly dogged by severe allegations that surrogate mothers, who routinely come from the poorest sections of Indian society, are subject to exploitation and mistreatment by the clinics that act as intermediaries. It is an indisputable fact that the industry has claimed the lives of countless surrogate mothers, such as Pemila Vaghela, Ranjeeta Lal, and Easwari, due to a lack of adequate medical facilities. Indeed, the stark reality is that the precise reason why India became the "surrogacy capital" of the world is because of a combination of the above factors: India was one of the only countries in the world where non-citizens could retain control of surrogacy arrangements in a legal and cost-effective manner, and where surrogate mothers existed entirely unprotected in an unregulated legal lacuna. It is arguable that, in some ways, the surrogacy industry in India was driven by global inequalities in wealth that allow for "surrogacy tourism.”
Baby Manji Yamada v. Union of India (2008) and subsequent legislative steps
In 2008, the debate on commercial surrogacy and "surrogacy tourism" in India was amplified by the case of Baby Manji Yamada. In this case, a married Japanese couple commissioned a child through a surrogacy clinic in India but divorced during the gestational period. When Manji was born, one of the Japanese couple who commissioned her refused to be recognised as her legal parent and, consequently, Manji was rendered stateless and parentless. Although this case turned on questions of citizenship and the appropriate travel documentation for Manji, it became a watershed moment for the debate about commercial surrogacy and "surrogacy tourism" in India.
Surrogacy emerged as an emotive flashpoint issue around which heated debates on the impact of globalisation, economic inequality, exploitation, and gender rights began to be waged. Responding to public pressure and heightened sensitivities about "surrogacy tourism," the government banned foreign single parents from commissioning children from Indian surrogates in 2013, and in 2015 restricted the entry of embryos into India. In 2016, the lower house of the Indian parliament passed the Surrogacy (Regulation) Bill 2016 which proposed a total ban on commercial surrogacy in India, however the bill lapsed due to the adjournment of parliament without being voted on by the upper house. Having outlined the history of surrogacy in India, this article will now examine the provisions of the 2019 Bill, which is in essence an unmodified form of the 2016 Surrogacy (Regulation) Bill.
Analysing the 2019 Bill
The 2019 Bill proposes criminalising all forms of commercial surrogacy in India and only permits altruistic surrogacy in extremely limited circumstances. The 2019 Bill places stringent conditions on both the intended parents commissioning the altruistic surrogate and the surrogate mother herself. If passed into law, altruistic surrogacy would only be legal for those couples who: (i) have been married for at least five years; (ii) the husband is between the ages of 26-55 and the wife is between 23-50; (iii) are both Indian citizens; and (iv) at least one of the married partners has a medical record of fertility issues. The surrogate mother herself would be required to be: (i) a "close relative" of the couple seeking surrogacy; (ii) between the ages of 25 and 35 years old; (iii) not have been a surrogate mother before; and (iv) be in possession of a certificate of "psychological fitness.” If contravened, the 2019 Bill imposes a maximum custodial sentence of 10 years and a fine of up to INR 1,000,000. Whilst the 2019 Bill is clearly motivated by a desire to protect surrogate mothers from exploitation, it is critically deficient in several ways.
A cursory glance at the above conditions reveals that the 2019 Bill, by default, outlaws all forms of surrogacy for a vast swathe of Indians including unmarried couples, single parents, widows, live-in couples and, as same sex marriage is not recognised by Indian law, members of the LGBT community. Therefore, the 2019 Bill demonstrably violates at least two articles of the Indian constitution. Firstly, in restricting the availability of altruistic surrogacy to heterosexual married Indian couples, the 2019 Bill clearly contravenes Article 14 of the Indian constitution which guarantees both equality before the law and equal application of the law to all citizens. Secondly, and perhaps more obliquely, the conditions of the 2019 Bill also implicitly contravene case-law on Article 21 of the Indian constitution, which guarantees citizens the right to reproductive autonomy. This right has been interpreted in cases, such as Suchita Srivastava v. Chandigarh Administration (2009), as extending to encompass the right of a parent to choose the mode of parenthood (either natural or through surrogacy).
Thus, through its regressive and unnecessarily restrictive conditions, the 2019 Bill is clearly suffused with a traditional, heteronormative, and patriarchal morality that stigmatises and discriminates against members of the LGBT community, as well as unmarried couples who may choose to live together. If the objective of the 2019 Bill is, as per the statements of the Health Minister, to protect surrogate mothers from exploitation, it is entirely unclear how preventing non-heterosexual couples, single individuals, and unmarried couples from accessing surrogacy services relates to this objective.
Furthermore, not only is the 2019 Bill unconstitutional and discriminatory, it is arguable that, in proposing a total ban on commercial surrogacy, it fails to achieve its stated purpose. In opting to ban the practice and restricting altruistic surrogacy, there is no guarantee that the 2019 Bill will not merely push the thriving surrogacy industry underground resulting in even less visibility and protection afforded to surrogate mothers. India's painful experiences concerning the ban on gender selective abortion and the dowry system indicate that outright bans, whilst appealing on paper, are more often than not counterproductive and ineffective. It is the author's opinion that a more measured solution, such as the promulgation of legally enforceable minimum medical guidelines to regulate surrogacy clinics and the creation of a supervisory body to protect surrogate mothers from exploitation, would be more appropriate.
Finally, it is notable that the 2019 Bill does not define the term "close relative" at all and it is therefore entirely unclear which individuals may qualify as altruistic surrogates. Such uncertainty is of itself troubling, but the government also does not appear to have considered that, in restricting those individuals who may act as altruistic surrogates only to "close relatives," it has created a very real possibility that some women may be coerced by familial pressure into acting as surrogates for relatives unable to conceive naturally.
Conclusion
At the time of writing the 2019 Bill has, following extensive criticism, been referred to a 23 member Select Committee of the upper house of parliament for revision. It is certainly heartening to see the legislature consider and debate a measure targeting the surrogacy industry in India, which has for too long existed in a legal vacuum enabling it to grow to unprecedented proportions. However, it ought to be evident from the above that the 2019 Bill in its current form is not fit for purpose and is, in the author's view, both unconstitutional and counterproductive.
Article tags: | intersectionality | feminism |
A crucial factor that drove the expansion of the Indian surrogacy industry is the demand by external non-Indian citizens for commercial surrogacy services that are outlawed in those citizens' home countries. Image source: Financial Times
It is arguable that, in some ways, the surrogacy industry in India was driven by global inequalities in wealth that allow for "surrogacy tourism.” Image source: San Francisco Chronicle / Polaris
It is the author’s opinion that the sums that can be earned via surrogacy, although relatively inexpensive for the non-citizens "commissioning" surrogacy services in India, are significant sources of income for surrogate mothers. Image source: Getty Images
It is the author’s opinion that the 2019 Bill, in its current form, is not fit for purpose and is both unconstitutional and counterproductive. Image Source: The Conversation
The Baby Manji Yamada case triggered debates about commercial surrogacy in India. Image Source: DNA India
The 2019 Bill is clearly suffused with a traditional, heteronormative, and patriarchal morality that stigmatises and discriminates against members of the LGBT community, as well as unmarried couples who may choose to live together. Image Source: Reuters
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