According to the new Surrogacy (Regulation) Bill, approved by the Lok Sabha recently, Altruistic surrogacy includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.

This line separates altruism from the commercial element that surrogacy carries with it.

 Surrogacy laws around the world

•  In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses.’
•  The reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilization (IVF) but may include other ‘expenses.’
•  In different parts of the world, varying levels of legal restrictions, or complete bans are practiced.
•  Altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
•  In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.

 The role of the surrogate

 As per the new Surrogacy Bill, the surrogate in India continues to fulfill her role as a gestate.

•  In keeping with the insistence on gestational surrogacy, which makes the use of IVF and other assisted reproductive technologies mandatory, the current Bill is faithful to the Indian Council of Medical Research’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
•  The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
•  The commercial surrogacy arrangement in India was an exchange of money for services.
•  That motherhood could be for sale is a matter of distress and shock.
•  In that sense, altruistic surrogacy is not very different from its opposite commercial variant.
•  Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
•  Kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
•  Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.

Where else altruism is applicable?

•  ‘Transplantation of Human Organs Act (THOA), 1994’ has linkages with commercial surrogacy.
•  The Act prescribes that organ donors are allowed to donate their organs before death only to ‘near relatives’.
•  Donating organs to ‘strangers’ or not near relatives before death is not allowed and may be approved of only through the authorisation committee.
•  The category of the ‘near relative’ appears again in a similar vein to the ‘close relative’.
•  But unlike the Surrogacy Bill, the THOA identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.

Need for caution

•  By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a dismal turn.
•  Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
•  In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
•  Despite exempting gay couples, single men and women, and live-in couples from seeking surrogacy, not clearly defining the regulative mechanisms within altruistic surrogacy, and the very regressive approval for couples with differently-abled children to opt for surrogacy, the Bill does seek certain important changes.
•  The push towards adoption is very welcome, as is the waiting period of five years. However, concerns associated with it needs to be addressed.