The infamous cases of child abandonment, commercialization of the reproductive capacities of women, financial exploitation of surrogates, and the near absent machinery to protect such women, set the Government of India into action, leading to the passage of the Surrogacy (Regulation) Act, 2021 along with The Assisted Reproductive Technologies Act, 2021, banning commercial surrogacy in India. Having developed as a hub for commercial surrogacy tourism since its legalization in 2002 due to the cheap surrogate services, excellent quality medical infrastructure, and lax laws and authorities, India was facing a crisis of huge proportions involving medico-legal and ethical collapse. Delivering a death knell to all the baby factories, Assisted Reproductive Technology Clinics and unscrupulous middlemen, the ban on commercial surrogacy in India has sent aftershocks in our country and internationally. What necessitated such a ban and what are the legal implications flowing from it? Is the ban progressive or regressive?
BANNING COMMERCIAL SURROGACY: THE NEED
Impoverished and developing countries like India, having limited employment opportunities, many underprivileged women faced with financial desperation and the necessity to secure their family’s future, fall prey to the agents from the surrogacy industry. Being illiterate or unaware of their rights and the terms of the contracts, made these women prime targets for the devious middlemen and clinics. Unfair and biased contracts, meagre payments compared to other countries, and the risk of having to bear medical expenses post-partum are just a few of the incalculable risks placed on the surrogate. The questionable ethics of the intending parents and the surrogacy contracts drafted heavily in their favour demanded a final solution. The unethical practices of implanting 5 or even 6 embryos as opposed to the maximum advised by the ICMR guidelines, placed these women at tremendous risk for pre-eclampsia, gestational diabetes, and strain on their organs. The abandonment of children with surrogates, especially children with birth defects or premature was a legal and social problem that had to be addressed.
The famous or should we say infamous Thailand case where Baby Gammy with down syndrome was split from twin born out of surrogacy and that of Baby Manji Yamada who was abandoned as a result of marital issues among the intending parents, highlighted the myriad ethical questions arising out of commercial surrogacy. There was a potential for trafficking of the human embryos, manipulating them through biotechnology and potential sex-selective prejudices. In the wake of so many ethical-legal problems, lax authorities, and unclear and non-binding guidelines for the protection of surrogates from these unscrupulous elements, the government had to amend the law and chose the path to completely ban commercial surrogacy.
COMMERCIAL VERSUS ALTRUISTIC SURROGACY
The Act prohibits commercial surrogacy, allowing only altruistic surrogacy to continue. Commercial surrogacy as defined by the Supreme Court in the Baby Yamada case is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. Altruistic surrogacy involves no charges, remuneration or monetary incentives, or compensation other than the medical or any prescribed expenses of the surrogate mother.
A parallel can be drawn from the legal stance taken by other countries. Thailand, China, Canada, the UK, and most of Europe have already banned surrogacy, in various forms, due to the legal and moral nightmares it posed for the authorities.
LEGAL IMPLICATIONS: THE GOOD AND THE BAD
The resultant chaos from this Amendment deserves an elaborate discussion. The legal implications of this move are mentioned below:
- Restrictive Eligibility Criteria
Now post-enactment, surrogacy is permissible only where the intending couple who have a medical indication necessitating gestational altruistic surrogacy, provided Certificates of Necessity and Medical Indication have been issued by the appropriate authority to the intending couples under Section 4. The Act under Section 4 (iii)(b)(iv) in other words states in the eligibility criteria for the surrogate that she cannot give birth to more than one child via surrogacy, reiterating the ban on the commercialization of reproductive capabilities. The Act provides strict penalties under Section 38 of the Act for advertisers, exploiters, abandoners, selling or importing the human embryo, along with the requirement under Section 11 and 17 respectively for the registration of surrogacy clinics and the establishment of National and State Surrogacy Boards. These shall enable the implementation of the ban on commercial surrogacy.
The Act mandates very strict and narrow criteria for the eligibility of intending parents and surrogates under Section 4 requiring the surrogate to be genetically related, married, within a range of 25 to 35 years, and already having a child of her own narrows down the options open to intending couples dramatically. Moreover, broaching such a topic within the family may be replete with awkwardness and in many cases, coercion of the women by family members. The restrictive eligibility of intending parents is ripe for litigation due to the replete discrimination it promotes based on sex, sexual orientation, age, and marital status.
- Medico-Ethics Introduced
This Act defines insurance under Section 2(q) and provides the surrogate under Section 4 (iii)(a)(iii) and with 36 months of insurance for post-partum medical issues together which include medical expenses, and other prescribed expenses due to the pregnancy. Under Section 3, clinics and the intending couple are also banned from conducting any sex-selective techniques during surrogacy.
It also raises questions on the ownership and future of already fertilized and cryopreserved embryos, whose parents are unable to find any surrogate as per the legal requirements. The Bombay High Court has directed the State and National Board to decide on the issue regarding the transfer of biological material to other ART clinics within 2 months and cooperate with the commissioning parents due to the time-based viability of the embryos.
- Alternatives (Un)Available
In a society lacking in acceptance and a streamlined process for adoption, childless people are left with no other option. Now, this ban reduces their likelihood of ever having children (through surrogacy or adoption).
- Blow To Women’s Rights to Reproductive Autonomy
By prohibiting monetary compensation to surrogates, the Act is criticized for having stripped these desperate women from their right to earn and the right to bodily autonomy, though ironically is intended to protect these very rights! It is also argued that such a paternalistic approach requiring women to agree to provide such services out of mere compassion, is asking for women to not be paid for their services, and is a setback to their right to live a dignified life and ability to secure their own children’s future. Finally, in a patriarchal society, how will families react if forced to choose between the surrogate or their heir, if such a situation arose?
The questionable rationale of this ban in improving the protection for the surrogate or the child in obvious violation of the reproductive autonomy of the women is a major contradiction in this Act. In a competitive corporate world, pregnant women are fired illegally. This legislation strips women of their right to children while protecting their jobs. Actors, models, sportswomen, and other professionals, whose careers do not permit drastic physical changes, are also now stripped of the alternative which helped them balance both.
- Ineffective Blanket Bans
Many experts have voiced their fears that completely banning commercial surrogacy will send the entire surrogacy supply chain underground. One may find similarities in the increased illegal and unsafe abortions post the ban on abortions in the USA leading us to conclude that similar illegal and black market surrogacies in India may increase.
Conclusion: Regressive or Progressive Move?
It is pertinent to bring attention to the recent Supreme Court judgment on single women’s rights to abortion discussing at length the Right to Bodily autonomy, which is possibly the most appalling drawback of this Act. The legislature must stay in touch with the pulse of society, changing times, and varying levels of social acceptance while enacting the law. This would ensure that the beneficial legislation applies to the widest strata and not be restrictive as this Act has been on many counts. Further, there must be a push to enforce this judgment in the right sense of the objective of decommercializing surrogacy but not harassing the well-intending couples. The potential harm – physical and monetary, arising out of blanket bans to the surrogates, the very people who sought to be protected must be considered at the table by the Parliamentarians.
Considering the complications and the mushrooming industry with countless clinics and players in every nook and cranny, the ban is, however, probably the strongest move towards the decommercialization of wombs-for-rent culture and the end of use-and-throw politics associated with surrogate women as witnessed from the west as well as domestically. Nevertheless, a stronger approach, quicker establishment of the boards, stricter vigilance, and accommodation of other categories under intending parents are warranted. A campaign for adoption acceptance and streamlining is the best solution to the increasing issues regarding reproductive rights. Though intended to be progressive, the Act has some regressive elements to it, reducing women to subjects of a paternalistic approach by the government, depriving them of their right to choose for themselves. To conclude, as much as the law provides, societal issues can only be eliminated when society wills them to be eliminated.
Author(s) Name: Ranjana S