A case for compensatory surrogacy

Explore a model where losses in terms of health, wages, sufferings, death, etc, are taken care of by the intending parents

By Author Dr D Radhika Yadav, K Pavan   |   Published: 5th Jun 2021   12:24 am

Over the past decade, legal and ethical issues surrounding commercial surrogacy are hotly debated. While deliberations largely focused on exploitative scenario and empowerment outline, the new draft Surrogacy Bill, 2020, prohibited commercial surrogacy and sharply restricted even altruistic surrogacy.

‘Commercial surrogacy’ is an arrangement where the surrogate mother receives a financial reward for her pregnancy besides medical expenses towards the relinquishment of the child, usually according to a pre-decided liquidated agreement. The opposite is altruistic surrogacy, where there is no such consideration or agreement. Commercial surrogacy has been legal in India since 2002. At a time when surrogacy as a multi-crore industry is in making and India is becoming a major global destination for ‘reproductive tourism,’ it is important to analyse the blanket ban.

Long Legal Journey

From the ICMR Guideline, 2005, Home Ministry regulations on surrogacy to FRRO-VISA, 2013, various legal instruments were put to regulate surrogacy, but none duly regulated this industry. The Supreme Court in 2008, in Baby Manji Yamada v. Union of India, [(2008) 13 SCC 518] formally recognised commercial surrogacy and pointed out the need for a law governing it, as the money-making racket is being perpetuated in various parts of India. In 2009, the Law Commission of India in its 228th report observed that Indian surrogates were being exploited by foreign nationals and recommended prohibiting commercial surrogacy.

In 2012, an Australian couple abandoned one of the twins born to a surrogate Indian mother because the child was born with Down syndrome. In 2014, a 23-year-old woman died after an egg donation procedure at an IVF clinic. Seeing these horrifying incidents, in 2015, advocate Jayashree Wad filed a public interest litigation (PIL) in the Supreme Court seeking prohibition of commercial surrogacy. Her PIL shaped public opinion and created pressure on the government to pass legislation.

The Surrogacy (Regulation) Bill, 2016, was introduced but lapsed in the Rajya Sabha and was sent to the Parliamentary Standing Committee for examination. In 2017, the committee in its 102nd Report opined prohibiting commercial surrogacy was unacceptable and based more on moralistic assumptions than on any scientific criteria.

In 2019, a Bill was introduced with little to no changes from the 2016 Bill and was referred to the select committee by the Rajya Sabha. The latest Surrogacy (Regulation) Bill, 2020, incorporated 15 major changes made by the 23-member committee and has received approval from the Cabinet.

Exploitation Narrative

Many researchers had found commercial surrogacy exploitative; some even compared it to prostitution as surrogates are used for reproductive labour by taking advantage of their sexuality. In cases of recurrent failure, the women have to put up with a high dosage of medication, multiple embryo transfers, hormone treatment, etc. Other aspects of surrogacy, like insufficient compensation, risk of trafficking, post-pregnancy issues, mental health and many more are present.

The demand for legal regulation and control of the practice of commercial surrogacy came from various platforms. But the priority was given to those demands which are from intending parents, surrogacy clinics, and medical practitioners. The vulnerable women who act as surrogates were never heard.

Since the surrogacy industry was not regulated through comprehensive legislation, these incidents are inevitable, but most of these shortcomings can be effectively regulated through stringent policies. Rather than a blanket ban which leads to the emergence of illegal markets and other problems, well-codified legislation can balance both the needs and the rights.

compensatory surrogacy

Feministic Perspective

A women’s right to make a reproductive choice is a part of her liberty under Article 21 as held by the Supreme Court in Suchitha Srivastava v. Chandigarh Administration, [(2009) 9 SCC 1]. What was considered as a societal duty, ie, bearing a child, can now be used as a tool to economically empower women.

When sperm donors get paid, why shouldn’t women have the same liberty to cash in on this? Why can’t women avoid pregnancy due to career-related commitments and still have the joy of being a mother? Many such questions find no answers if commercial surrogacy is prohibited.

Constitutional Hurdles

The AP High Court in BK Parthasarathi v. Govt of AP [1999 SCC OnLine AP 514] held that the State’s interference in procreation violates privacy. The Bill mandates certificate of essentiality and eligibility to be taken from appropriate authorities to make sure that intending parents cannot biologically have a child. This interference by the state violates the right to privacy.

Moreover, violation of the right to livelihood is another ground as in the Consumer Education and Research Centre v. Union of India, [(1995) 3 SCC 42], the Supreme Court stated that the expression ‘life’ under Article 21 has a much wider scope and includes the right to livelihood. In Saghir Ahmed v. State of UP, [1955 SCR 707], the expression ‘freedom’ in Article 19(6) was interpreted as “every citizen has a right to choose his own or take up any trade or calling”. Hence, freedom to practice or carry on any occupation, trade or business is also being violated.

Further, the Supreme Court recognised transgender’s rights in National Legal Services Authority v. Union of India, [AIR 2014 SC 1863]. The Bill is silent on third gender rights. The grounds mentioned in the Bill are narrow and it disentitles same-sex couples and transgenders from any form of surrogacy. Hence, in this transformative constitutional era that is marching toward the ideals of liberty and equality, these loopholes are constitutional hurdles.

The government should enact laws that are in coherence with fundamental rights and policies which cater to the feministic ethos. The “altruistic model”, in which a surrogate mother has to put up with the physical and emotional turmoil only out of “compassion” is not practical. Thus, the ‘compensatory surrogacy model’ where losses are taken care of by the intending parents in terms of health, wages, sufferings, and death, etc, must be explored.

(Dr D Radhika Yadav is Assistant Professor and K Pavan is student at University College of Law, Osmania University)

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