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Why are People Opposing the Surrogacy Bill?

Here’s a guide to help you out.

Are you wondering why people are opposing the Surrogacy (Regulation) Bill that is currently before the Rajya Sabha? Here’s a guide to help you out.
First, a little background.
What is surrogacy?
Surrogacy is an arrangement in which a person (called the “surrogate” or “surrogate mother”) has a baby on behalf of a couple or an individual, and hands it over to them after birth. The baby can be produced by creating an embryo – made using eggs and sperm taken from one or both of the parents, the surrogate, or a sperm or egg donor – which is implanted in the womb of the surrogate, who gives birth to the baby.
People usually opt for surrogacy when they cannot bear a child themselves, for medical or biological reasons. Celebrity couples like Aamir Khan and Kiran Rao and Shah Rukh Khan and Gauri Khan, and single celebs like Karan Johar have become parents through surrogacy.
What is “altruistic surrogacy” and “commercial surrogacy”?
When a friend, relative or individual wants to help another person or couple have a child by agreeing to be a surrogate, and does so without seeking payment, it is referred to as altruistic surrogacy. When someone is paid to do the work of surrogacy (beyond just covering basic medical expenses), it is considered commercial surrogacy.
The Bill seeks to ban one form of surrogacy
At the moment, India is considering a Bill that will ban commercial surrogacy altogether and allow altruistic surrogacy for married couples only if the surrogate is a woman who is a “close relative” of the couple. Although some amendments to the Bill were circulated in the Lok Sabha in December 2018, here is why many people are still asking the Rajya Sabha not to pass the Bill:
It says commercial surrogacy = bad and altruistic surrogacy = good
Given the serious economic disparities in India, there is a risk of poor women being exploited for their wombs and their health being placed at risk for financial gain. However, instead of safeguarding surrogates’ interests and regulating the practice, the Bill’s approach is to ban it completely – supposedly to ensure that women cannot be exploited as surrogates. While some activists welcome the ban others say this will not end commercial surrogacy, but drive it underground.
The Bill holds up altruistic surrogacy as the only available option, relying on the idea that if the surrogate is a close relative, then there is no exploitation involved. This ignores the reality of reproductive labour as well as the fact that many women are closely controlled by their families, and does not take into account that women can be coerced by their relatives into agreeing to be a surrogate.
Instead of protecting women’s reproductive rights and leaving the choice up to women if they would like to be surrogates or not, the Bill specifies that only a certain kind of woman – matlab the ‘right’ kind: married and with a child, and performing a selfless act – gets to be a surrogate.
It is obsessed with marriage
Specifically, heterosexual marriage. The Bill says you can only have a child through surrogacy if you have been in a married couple for 5 years. The couple it speaks of is that of a man and woman. It also states that you can only be a surrogate if you are married, or have been married.
This links the idea of sex to reproduction and marriage alone in an implied way.
It also ignores the rights of single people and unmarried couples of all sexual orientations, and their desire to be parents, by denying them the chance to have a child through surrogacy. It denies all people with wombs the choice to act as a surrogate – outside of the narrow terms of kinship and marriage and motherhood that the Bill sets down.
In contrast, adoption in India, although a stringent process, is allowed for single people, live-in couples, and couples who have been married for two years. Why are there different rules of eligibility when both adoption and surrogacy are ways of expanding a family?
It has soooo many unfair conditions
These are the conditions for becoming a parent through surrogacy:
-       You have to be an Indian citizen. Foreign nationals and NRIs cannot qualify
-       You have to have been in a heterosexual marriage for at least 5 years
-       You must be childless, or have a child who has a mental or physical disability or a life-threatening illness
-       Either you or your spouse has to be infertile. If you are a woman who has been able to conceive a child with your husband, but may not be able to carry a child through nine months of pregnancy (including if you have had multiple miscarriages), you are not eligible. It is almost as if the inability to carry a baby to full term is the fault of the person involved.
-       If you are the wife, your age has to be between 23 and 50
-       If you are the husband, your age has to be between 26 and 50
-       You must fulfil whatever other conditions the proposed National Surrogacy Board might decide to set. As the Board doesn’t exist yet, these conditions are unspecified.
-     You need a “certificate of essentiality” and a “certificate of eligibility” from “appropriate authorities” (which are to be appointed by the Central and State governments) although there is currently no process of appeal if you are not granted one.
These are the conditions for becoming a surrogate mother:
-       You have to be a woman who is a close relative of the couple opting for surrogacy
-       You have to be between 25 and 35 years old
-       You have to be married or have been married at some point
-       You have to have a child of your own
-       You have to be a first-time surrogate (a woman can be a surrogate only once)
-       You have to have a certificate stating that you are physically and mentally fit
What if you want to act as a surrogate to help out your relative, but have never been married? Or are married but choose not to raise a child, or maybe just not yet? The Bill takes unnecessary interest in controlling the surrogate’s reproductive rights, framing it within marriage and morality.
It does not place women’s health as a central concern
The Bill rules that embryos cannot be stored. This can be a problem because in order to extract eggs from a woman who is part of a couple opting for surrogacy, extensive hormonal treatments are required. If multiple embryos cannot be made and stored in one go, a woman might have to go through the hormone treatments repeatedly, which can be draining and have serious health consequences.
It takes away the choice to abort
The couple opting for surrogacy has no say in the abortion of the foetus. If the child is at risk of developing abnormalities, only the surrogate and the authorities get to decide whether or not to terminate the pregnancy, while the couple has to bear responsibility for raising the child.
Amendments following earlier criticism
A few unfair rules have been addressed through the amendments circulated in December, which seek to reduce the punishment for commercial surrogacy from 10 years to 5 years in prison, ban sex selection, give the surrogate the option of withdrawing before the embryo is implanted, and set a timeframe of 90 days for the authorities to issue a certificate of eligibility, among other things.
Why are some people protesting the Trans Rights Bill, the Sex Trafficking Bill and the Surrogacy Bill together?
(Photo courtesy Shals Mahajan)
Each of these Bills is about a separate issue, but they are linked in many ways by their reliance on outdated ideas of morality, denial of rights to LGBTQ+ people, unnecessary application of a criminal lens to social issues that need to be understood with greater nuance, and denial of the right to choose what one would like to do with one’s own body – whether it has to do with taking hormone therapy, engaging in sex work, or bearing children as a surrogate. Trans rights, women’s rights, reproductive rights, and sex workers’ rights all overlap, so it makes sense to protest these Bills, which trample on these rights, together.
What you can do
1. Raise your voice online, spread awareness about the Bill’s limitations
2. Write to Rajya Sabha MPs demanding that they drop the Bill or re-assess it after conducting more research and consulting more people
3. Organise or join protests in your area
Educate yourself more:
- For more on the Surrogacy Bill and issues with it, head here and here
- For more on the Trans Rights Bill, head here
- For more on the Anti-Trafficking Bill, head here
- For more on why some are protesting all three Bills simultaneously, head here
- For a broader perspective on surrogacy in India and how it plays out in real life, read Gita Aravamudan’s 2014 book Baby Makers: The Story of Indian Surrogacy
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