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Due to the dearth of legislation, the practice of commercial surrogacy is currently unregulated in India. The lack of a legal framework leaves surrogates vulnerable to numerous forms of exploitations and health hazards. After facing criticism for its previous bills on regulating surrogacy, the government of India has given its approval to a new Surrogacy (Regulation) Bill, 2020 (“the Bill”) to fill the legal void. While the Bill is a definite improvement upon its predecessors, it still fails to uphold women’s rights to livelihood and to reproductive autonomy and violates the right of LGBT couples to both equality and parenthood.
Unlike its 2019 version, which only permitted “genetic relatives” of the intending couple to serve as a surrogate, the Bill allows “any willing woman” to be a surrogate so long as the concerned surrogacy is “altruistic” (with no charges, remuneration, or monetary incentives) and not commercial. The intent behind the Bill’s blanket ban on commercial surrogacy is to safeguard surrogates from exploitation. However, such a ban would rob underprivileged women of the opportunity to earn a livelihood by way of serving as surrogates.
In India, women have fewer economic opportunities, which predisposes them towards poverty. In this light, commercial surrogacy becomes an effective tool for self-sustenance. The Supreme Court of India inOlga Tellis v. Bombay Municipal Corporation held that the right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Indian Constitution. The Court reasoned that “the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.” Thus, by putting a complete ban on commercial surrogacy, the Indian government has potentially violated Article 21 rights of the many women who are dependent upon surrogacy to pull themselves and their families out of poverty.
Moreover, the Indian government’s blanket ban on commercial surrogacy would also have an adverse bearing upon the growing ambit of women’s rights jurisprudence in India. In a 2009 decision, Suchita Srivastava v. Chandigarh Administration, the Supreme Court declared that the right to make reproductive choices falls under Article 21 of the Constitution and includes entitlement to carry out a pregnancy to its full term, to give birth, and to raise a child. In K.S. Puttaswamy v. Union of India, the Supreme Court’s constitutional bench held that the right to privacy, which emanates from various provisions of the Constitution, protects intimate personal choices, such as those governing reproduction. A complete ban on commercial surrogacy would result in denying women the choice to use their reproductive agency for monetary gain. This denial of choice potentially violates the constitutionally guaranteed rights to privacy, reproductive autonomy, and bodily integrity.
Not only does the Bill violate rights guaranteed under the Indian Constitution (at the national level), but it also violates those guaranteed under various international conventions that are binding on India. Article 12 of the Universal Declaration of Human Rights (“UDHR”) and Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) prohibit State’s unreasonable interference upon women’s privacy, and the ICCPR Committee has interpreted the right to privacy to include women’s bodily integrity and autonomy. These rights stand violated by the Bill’s blanket ban on commercial surrogacy.
Several countries in the global North have a blanket ban on commercial surrogacy. However, the same is not a welcome move in the Indian scenario for three main reasons. Firstly, there is a genuine apprehension that putting a complete ban on commercial surrogacy would result in the practice shifting to behind closed doors. Once the illegal market for commercial surrogacy spreads, underprivileged women will be forced into the same due to the dearth of other income opportunities. This would not only expose surrogates to a plethora of health hazards but may also result in a massive problem of child abandonment due to the lack of legal obligations upon the intending couples. Secondly, this Bill would leave potential surrogates open to exploitation while participating in underground commercial surrogacy, and they would likely find it impossible to get justice as the law would treat them as accomplices facilitating an unlawful activity. Lastly, banning commercial surrogacy would add to India’s grave gender disparity. As previously mentioned, women, especially those who are underprivileged, face crippling disadvantages as they try to earn a living in India’s heavily patriarchal society. In such a dire scenario, commercial surrogacy is one of the very few earning opportunities where women do not have to compete with men, and banning it would only enlarge the economic dimensions of gender inequality in India.
In its 102nd report, the Parliamentary Standing Committee on Health and Family Welfare recommended against banning commercial surrogacy, stating that such a prohibition is only based on moralistic assumptions and not on any scientific criteria. Instead of only allowing altruistic surrogacy, the Committee recommended that a compensatory approach towards surrogacy be adopted for the benefit of the surrogate. Such an approach would ensure that surrogates are adequately compensated, not only for their labour but also for the expenses incurred during pregnancy. However, these recommendations have not been incorporated into the Bill.
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