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Surrogacy (Regulation) Bill, 2020: Doing more harm than good?

Surrogacy has often been treated as a taboo topic due to the moral and legal complexities entwined with the very idea of a woman bearing a child for a third party. Surrogacy was legalized in 2016, before that surrogacy existed in a spectrum away from the law, without proper mechanisms and redressals available, surrogates often faced difficulties and had no legality to depend on.

For foreigner India became a hub of buying and selling of life, exporting embryos and gametes, full-fledged rackets came into existence with the sole of perpetrating unethical methods of surrogacy and gaining monetary benefit in return. Ever since 2016 surrogacy has existed legally thereby reducing the number of crimes in relation to it. The recent bill passed in 2020 with additional 15 changes legalizes altruistic surrogacy, banning commercial surrogacy.

The Positivities Of The Bill
The 228th law commission report highlighted the need for stricter provisions governing the practice of surrogacy. The bill of 2020 tackles several of the concerns laid down in the report.
The bill has improved the conditions of the practice of surrogacy undoubtedly. There are now structured laws and rules one needs to follow along with constitution of surrogacy boards at the state and national level. The Bill also species who exactly can explore this option. It also makes the process stringent by requiring the candidates to obtain certificates of essentiality and eligibility thereby reducing the scope for several illegalities that could occur.

The bill not only aims at protecting the rights of the surrogate, enlisting Further duties of the candidates but also provides comprehensive provisions to protect the rights of the child born out of surrogacy. The bill mentions mandatory recognition and registration of surrogacy clinics in order to keep a check on medical malice. Additionally, it also specifies that surrogacy must not be sex selective in nature.

Criticism Of The Bill:

Ban on Commercial Surrogacy:

Banning a practice does not equate to its nonexistence in the society in the coming years. When the government bans something, it usually means that the practice will continue to exist however away from the public eye. To substantiate this statement, we have several examples one of them happens to be buying and selling of organs, that is the black market for sale of organs. The fact that the only legal way to exchange organs is through good will by donation has forced people desperate for money to approach opportunists. These people exploit the vulnerability of the sellers and because the operation exists in a spectrum away from law, they have no legal recourse we now have trafficking rings operating all because of one simple illegality.[1]

Similarly banning commercial surrogacy is in no way going to affect the demand, only create a new parallel where the practice will take place illegally, comprising the rights of the surrogates and questioning the ethicality of the entire concept. A surrogate earns around 10 to 12 lakhs by carrying a baby, cancelling out the monetary interest part of the concept will only wither away the supply in the face of demand. Forcing people to resort to illegal options.[2]

Blatant Discrimination:

The bill clearly defines who can be a surrogate and who can avail the option of surrogacy. These criterions are quite autocratic in nature as the definitions have no sense of rationality thereby depicting a sense of blatant discrimination. The bill excludes LGBTQ couples, Foreigners etc. for the purpose of the practice without any comprehensive explanation. This means excluding a substantial chunk of population from availing a practice due to vague reasons, thereby indirectly forcing them to resort to illegal methods.[3]

Contradicting Ideas:

Several judgements have put forth the idea that a couple in a live-in relationship can hold status equal to a married couple. In the case of Madan Mohan Singh v. Rajni Kant[4] it was held that a couple living together for a long period of time have a presumption of a marital relation between them. However the surrogacy bill denies people living in live in the opportunity to have kids through surrogacy.

The historic judgement of Navtej Singh Johar V. Union of India[5], legalised same sex couples and termed it an historic wrong to have criminalised it in the first place. However somehow even after validating their existence legally they are prohibited under surrogacy bill to have kids through a surrogate.

Therefore in these cases law has put forth mixed ideas as to the equality of relationships all over the country. By introducing these autocratic criterions to have a kid under this bill, the law has hierarchy differentiated the various relations between people.

Standing in violation of Part III of the Constitution

Article 14:

This article validates equality of all before law, the surrogacy bill however places restriction on people turning to surrogacy thereby eradicating candidates with no reasonable classification. As per Article 14 equality is not absolute, not all laws can apply to everyone therefore the test of reasonable classification was introduced in order to determine the legal validity of a law. Surrogacy bill when put under this test does not qualify based on the sole reason that the classification is reasonable and therefore amounts to class legislation. This test was consolidated in the case of State of West Bengal V. Anwar Ali.[6]

Article 21:

Article 21 within its ambit includes right to privacy. Under the Surrogacy Bill, 202o government has established an ‘agency’ over the woman’s body by dictating the entire phenomenon through one perspective without leaving any space for a woman to act independently as a surrogate. Right to privacy includes right to our own body this bill however is destructive to the conceptive of privacy a sit makes laws over the bodies of women. Thereby standing in violation of Article 21. [7]

Contesting Opinions:
This bill also led to public outcry be several stakeholders of the societies many women-based organizations spoke against it as well as gynecologists. Due to the fac that the bill expects women to go through the strenuous process of giving birth for another couple and not even except any kind of monetary benefit from it. It might also pressure women to conform to it unwillingly due to the vague gaps between the rights of the surrogate.[8]

Putting Surrogates on an Unfair Pedestal, an Antithetical Approach:

The bill in this sense dictates the entire process and by putting the surrogate on a pedestal excepts the act to be selfless in nature. These expectations have created air of uncertainty around the whole process itself where the women have to meet abstract requirements of warmth, nurture etc. It places pressure as well aims to manipulate them out of the monetary component.[9] The bill also is tinged with inherent patriarchy due to the approach take out of a drafting committee of 23 people only 3 are women and therefore it also poses a case of misrepresentation of an entire section of the society.[10]

The bill in its entirety is a mix of both good and bad, there are certain grey areas however the bill is a start of something very much required in our country. It addresses the issue although people have a mixed opinion when it comes to the bill however the fact that the bill is a right step in the direction is something we must acknowledge. After all no law is perfect that is exactly why the process of amendments exist in the first place. Also as established law is a continuous endeavour that strives to attain peace and equality for everyone alike.

  1. The Atlantic, Why legalizing sale of organs would help save lives, end violence, Anthony Gregory. November 9, 2011
  2. The Hindu, What’s wrong with the Surrogacy bill, Nidhi Gupta, September 9, 2016
  3. Deccan Herald, Surrogacy Bill is a big step forward, Sarvesh Kumar Shahi, March 5, 2020
  4. Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : (2010) 3 SCC (Civ) 655, 13-08-2010
  5. W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
  6. 1964 SCR (1) 371
  7. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.
  8. Intersectional Feminism, The Surrogacy bill, 2019, Denies agency over own body, Chandrika Manjunath,
  9. Hindustan Times, Tracing the journey, and flaws, of the surrogacy bill, February 16, 2016
  10. Report of the Select Committee on Surrogacy bill 2019, Rajya Sabha, 5th February, 2020

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