Introduction :- 

The Lok Sabha passed a Bill banning commercial surrogacy with penal provisions of jail term of up to 10 years and fine of up to ?10 lakh. The Bill, which will become law once the Rajya Sabha approves it, allows only close Indian relatives to be surrogate mothers and purely for “altruistic” reasons. It states an Indian infertile couple, married for five years or more, can go in for ‘altruistic surrogacy’ where the surrogate mother will not be paid any compensation except medical expenses and insurance.

In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’. The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilisation (IVF) but may include other ‘expenses’.

In most of Australia, altruistic surrogacy entails restricted — in different parts of the world, varying levels of legal restrictions, or complete bans are practised — pre-approved payments to the surrogate, including for diet during the pregnancy, and/or for the medical treatment.

However, 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.

Altruistic surrogacy arrangement :- 

• According to the new Surrogacy (Regulation) Bill, approved by the Lok Sabha, it 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, in gist, separates altruism from the commercial tinge that surrogacy carries with it.
  In the K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
• The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilisation (IVF) but may include other ‘expenses’.
• Altruistic surrogacy entails restricted in different parts of the world, varying levels of legal restrictions, or complete bans are practised pre-approved payments to the surrogate, including for diet during the pregnancy, and/or for the medical treatment.
• However, 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.

Role of the surrogate mother:-

As per the new Surrogacy Bill, the surrogate in India continues to fulfil her role as a gestate. Motherhood did not belong to the surrogate and she was trained to think of herself as a gestate and the relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.

The commercial surrogacy arrangement in India was an exchange of money for services and yet, clinics and surrogacy agents went to great lengths to transform the commercial element of the surrogacy arrangement, primarily identified as the surrogate’s fees, into gift-giving, and sacrifice. That motherhood could be for sale is a matter of distress and shock.

As per the new Surrogacy Bill, the surrogate in India continues to fulfil 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. Motherhood did not belong to the surrogate; she was trained to think of herself as a gestate, as research by Amrita Pande suggests, and the relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.

The commercial surrogacy arrangement in India was an exchange of money for services: and yet, clinics and surrogacy agents went to great lengths to transform the commercial element of the surrogacy arrangement, primarily identified as the surrogate’s fees, into gift-giving, and sacrifice. 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’. Here, 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.

Serious Concerns about the Bill :-

• Altruism ignores the physical and emotional labour of the surrogate mother, and does not take into account post-partum problems, whether mental or physical.
• In India, women have to be fully informed about the nature of the invasion their bodies will experience for surrogacy and the possible emotional cost of letting a gestational child go before they agree to the procedure.
• The bill is silent about this aspect of exploitation. All it does is suggest an insurance and assume that bearing a child is a labour of love which it is women’s ‘nature’ to do ‘free’.
• The real elephant in the room is the prohibition of payment. Eliminating the possibility of ‘wombs for rent’, though, cannot stop exploitation families, at least in India, exploit women most.
• Making the surrogate mother a ‘close relative’ not only increases the difficulties for intending parents but also reinforces familial, patriarchal networks, not least by undermining women’s autonomy of will and body.
• Without working out the issues involved, and revising its interfering habit, no regulation will be acceptable.
• Similarly, it lays bare its discriminatory approach by banning live-in couples, homosexual and trans people, and singles from opting for surrogacy.

By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a murky 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. In facilitating altruistic surrogacy among close kin, we have to be wary of the kind of exploitation we are fostering.

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.

The popularity of IVF and other assisted reproductive technologies stems from a problematic conceptualisation of infertility itself, pushing couples to opt for invasive intervention within a year of unprotected coitus. Of importance now is to go back to understanding why and how the desire for children is socially mediated to help couples seeking surrogates, and vice versa.

Conclusion :- 

The definition of a close relative will be clearly given in the rules of the Bill. It should be clear that only a defined mother and family can avail of surrogacy and it won’t be permitted for live-in partners or single parents. In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.

In facilitating altruistic surrogacy among close kin, we have to be wary of the kind of exploitation we are fostering. The Surrogacy (Regulation) Bill, 2016, does not only violate the Articles 14 and 21 of the Indian Constitution, it’s regressive nature also reinforces the moralistic notion of purity of the womb and family. It also takes away the rights and the bodily autonomy of women who might consensually want to become surrogate mothers.