The Cabinet on Wednesday cleared the draft Surrogacy (Regulation) Bill. While it was hailed as a step forward after years of having an unregulated surrogacy industry, the narrow ambit of the bill leaves many sections of society aspiring to have children through surrogacy, on the lurch - like single parents, live-in couples and gay couples.
Gita Aravamudan, author of “Baby Makers: The Story of Indian Surrogacy”, says that celebrating the bill simply because it is the first legislation on the matter, is not justified.
She argues that the bill is majorly flawed because of the blanket bans it imposes on commercial surrogacy and on everyone other than heterosexual, childless couples married for at least five years and residing in India from being eligible for surrogacy.
“What about widows and widowers? What about those wanting to be single parents? There are many social relationships that the bill completely overlooks. Ban paedophiles from availing surrogacy services or screen people with medical problems (which could adversely affect the child) from availing surrogacy. The blanket bans don’t make sense,” says Gita. She had earlier told TNM that background checks need to be put in place for any aspiring parent(s).
NRIs, foreigners and even PIOs who hold Overseas Citizens of India (OCI) cards have been barred from having children in India through surrogacy, which Gita finds problematic. She explains how many Christian countries do not validate surrogate children, which is why only children conceived by couples holding the appropriate visa are allowed to bring the children back to the country of residence. Such regulation, with proper documentation, is a good practice, Gita says.
“Now these couples will not be able to get that visa because India has barred NRIs and foreigners altogether,” points out Gita.
Gita also says that the current bill seems to have completely disregarded the previous drafts, none of which criminalized or banned commercial surrogacy. Hari Ram Ramasubramanian, consultant with the Indian Surrogacy Law Center says that surrogacy will not be successful in India without commercialization and that this will encourage an underground black market.
Hari also points out how the requirement for the surrogate mother to be a “close relative” and married mother of the couple limits the aspiring parents’ options. “There are many people in India who do not have this “close relative” willing to carry a child for them,” he says.
While the government hopes “altruistic surrogacy” will eliminate exploitation of surrogate mothers, Gita disagrees. “Suppose there is a rich childless couple who has a poor relative. They can blackmail them emotionally and even coerce them into carrying their child financially. And then what is the guarantee that this “close relative” is treated well?” she argues.
Dr Shivani Sachdev Gour, founder-director at SCI Healthcare and SCI IVF Hospital, Delhi, says that the five-year married status infringes on the reproductive rights of a woman. “There are many women born without a uterus or medical conditions which render them incapable of carrying a child. How does it make sense to make her wait for five years after marriage then?” she argues.
External Affairs Minister Sushma Swaraj while announcing the provisions earlier, had reasoned that couples with at least one biological or adopted child would not be eligible for surrogacy because they may be biased in favour of the biological child, especially when it came to property matters.
However, Dr Shivani points out how leaving childless couples at the mercy of relatives can create problems too. “Sometimes, relatives may want the couple to remain childless so that there are less claimants for family fortune and property,” she says.
The bill has angered LGBT activists as well with many calling it a “homophobic” legislation. However, Gita says that as long as section 377 is still citied to criminalize homosexuality, allowing gay couples to opt for surrogacy will remain a far cry.
She also said that while the surrogacy industry has problems, blanket bans are never the solution. “By that logic, dowry is also a problem. So will the government ban marriage?” Gita said.