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How The New Surrogacy Bill Actually Puts Added Pressure On Women In India

Introduction

Surrogacy in India is a huge business. Indian surrogacy has for some time been a mainstream choice for parents trying to conceive, but like most countries around the world, it has as of late experienced major legislative changes to bring in a structure to the whole procedure. But the underlying problem has always been the exploitation of women who chose to or are forced to become surrogates. 

The first legislative measure was however taken in 2015, wherein the Indian Government banned commercial surrogacy as an option for international clients in India. This was a detrimental hit to the booming business already existing in India. 

The chain of exploitation is pretty similar to the idea of “centre and periphery” (metropole-satellite) wherein the exploitation carried on by the first world countries on the poor and underdeveloped or developing countries for cheap and abundant labour (Brewer, 1990). Andre, in his argument, challenges our ideas of modernisation. He brings forth the idea that underdevelopment is not a step towards modernisation; rather, it is due to the exploitation of the periphery by the core that underdevelopment prevails (Frank, 1969).

The Surrogacy (Regulation) Bill, 2019, was introduced in the Lok Sabha by the Minister of Health and Family Welfare, Dr Harsh Vardhan, on 15 July, 2019. It was, however, passed on 5 August, 2019. Further, it was referred to a “Select Committee”, who finally submitted their report in February 2020 [1]. 

The Bill puts a blanket ban on commercial surrogacy and only allows altruistic surrogacy for married Indian “couples” — where the surrogate does not receive any monetary compensation apart from the medical expenses and she has to be a “close relative” of the couple who intends to have a child. It also specifies the criteria under which a woman qualifies to become a surrogate; it also makes it mandatory for all surrogacy clinics to be registered. The Bill was passed to stop the exploitation of women in the country by foreigners, middlemen and unregulated surrogacy clinics.

A Failed Attempt?

The Bill encouraged surrogate black markets to thrive.

The Bill, even though it is aimed for a larger good, in the course of that run, has failed to address certain shortcomings which make the lives of Indian women much more miserable. It has tried to safeguard the basic rights of the surrogate mothers which needed to be taken care of during pregnancy, like health insurance and proper payment, but what it did was create an underground black market for women who were ready to become a surrogate. Because the sum of money received at the end, however little, stands to be an urgent requirement and the offer is lucrative enough for them. 

The gap which is evident in policymaking in India is that they fail to acknowledge the loopholes, which cause more harm than good. Maitreyee Chaudhuri points out that women are only mere “recipients of development” and men take part in deciding what is good or bad for them. But it is rarely thought of from a woman’s perspective by a woman herself, acknowledging all the aspects such as financial, health, etc. 

The power and politics have, since time immemorial, been in the hands of authoritative men who sit and make laws on behalf of women; all that women were entitled to be are care-givers and “national emblems of culture” (Chaudhuri, 1999). Nowhere in that process were they independent enough to make their own decisions and decide what is good or bad for them — in return what she got were titles such as “Mother India” [2] or “Bharat Mata” [3]; which did nothing more but glorify their existence.

The home was considered to be the spiritual abode of cultural authenticity. Men sought to build the nation on purity, chastity. She was supposed to know how to sew, cook and perform all other “womanly activities”. 

Worshipping a pure and virgin girl who is not “polluted”

Her idea of purity has always been her virginity. To talk about an example, the whole tradition of “Kumari Puja” during “Durga Puja” in Bengal is nothing but worshipping a pure and virgin girl who is not “polluted”. She has been given the status of a deity and is kept for spiritual purposes only. This was another way how men secluded them from almost all aspects of life by giving her a spiritual status. The whole concept of “Bharat Mata” is a farce, the nation might be considered a female, but the nation still belongs to the men (Chatterjee, 1989).

Privatisation of the Womb

With the advancement of technology, we have seen the rise of commercial surrogacy. With that, there has been a stark increase in private clinics that act as middlemen between the surrogate and couple. That comes with a whole different structure of exploitation of women — since they become the only point of contact between the concerned two parties. They sometimes also deprive the surrogate mother of their actual payment. 

This industry was barely regulated until a point of time. Women’s rights were violated and it became a huge money-making process. After several reports from human rights activists, there was a regulation of a certain sort (2015 ban on international surrogacy). The women weren’t aware of their rights and did not receive any counselling or help during the pregnancy, which was supposed to be taken care of, let alone any financial aid. 

Surrogacy is considered a taboo in our culture on many fronts.

The kind of stigma attached to carrying someone else’s baby in society also questions the loyalty of the woman to her husband. Often women tend to do it in private without their family members’ knowledge. Even the couples who have had their babies via surrogate mothers barely talk about their experience publicly; which makes this process even more shameful and undercover [4].  

Globalisation has brought forth neoliberalism which guides every possible aspect of a person’s life. It dictates their choices and decisions. It looks at the citizens of the country as nothing but mere consumers of the goods that they want them to purchase. Every aspect is dealt with monetarily — everything is all about the free market reign. 

In terms of women (surrogates), they are treated as nothing more than a commodity which is just available or willing to “rent” her womb for money. They don’t even take into consideration the health risks that include short term risks like ovarian hyperstimulation syndrome (OHSS), ruptured cysts, ovarian torsion, bleeding, pelvic pain, mood swings, infection, premature menopause, kidney failure, stroke and even death. Two of the most serious long term risks are future infertility and cancer, most commonly ovarian, breast and endometrial. 

The globalisation of reproductive technologies has seen to increase in the past decade; hence, the increase in privatisation by day. The profit-driven private surrogacy clinics which serve as a tool of exploitation for vulnerable women were also a result of privatisation. Healthcare is still inaccessible to a majority of Indians because that has also been privatised. 

Neoliberalism comes with the hopes of altering the existing systems; privatisation too is facilitated by it. It takes away the freedom of choice from the citizens. “The globalisation project succeeded in the development project — not because development is extinct, but because its coordinates have changed. Development, formerly a public project, was redefined as a private, global project” (McMichael, 2017). 

The idea of development is constantly changing, trying to be on par with the development strategies of the West. In that run, it fails to acknowledge the finest details which need to be looked after. Because India cannot become an exact prototype of the West, neither is the structure suitable nor applicable. Our policymakers tend to look away from this reality and keep living in the utopia, which serves their interests well. All the ideas of safeguarding human rights and upholding the tenets of human development become a joke when seen in reality.    

Altruistic Surrogacy: Willing or Forceful?

The Bill strengthens the stigma of infertility while emphasising obligatory, practically mechanical procreation after marriage. It additionally puts undue pressure on a fertile lady who is a “close relative”. 

The surrogate has to be a “close relative”.

Considering how patriarchal the Indian society is, we cannot rule out the fact that women in the family can easily be forced to become surrogates just because altruistic surrogacy is legal.

Her family will not wait for her decision; instead, it will just be imposed on her; which would save the dignity of the family and women are supposed to uphold the family’s dignity since forever where men would sit and command. 

The Bill stands on the mistaken premise that the exploitation of women would not happen within the family; it does not take into account that women are vulnerable even within their own family. Women are subjected to undue and obligatory practices right from the moment they are born, both knowingly and unknowingly — that is how deeply male-centric the society is. All the empowerment that the male-centric, modernised legal regulations promise to us look good only on paper. They want to empower their women well within the bounds of patriarchy. 

Nandy talks about utopias like this, which safeguard the traditional values and culture of society just because the bubble is too precious and rigid to burst. He says, “Once a person enters the utopia, it is difficult for them to move out of it.” “Perhaps utopias humanise or dehumanise us by intervening in the contemporary social consciousness,” he adds (Nandy, 1987, pp. 2-3). 

As an example of the conservativeness of the Indians, we can take the said Bill for instance where there is no scope for single parents, live-in partners, foreigners or members from the LGBTQIA+ community to have a child via surrogacy. Therefore, it comes into conflict with Article 14 of the Constitution, which guarantees equality in front of the law. The Bill clearly describes the criteria for a couple who is “legal” to have a child via surrogacy; a man of 21 years and above and a woman of 18 years and above are only legally allowed (Aggarwal and Garg, 2016).

On another note, India emphasises on strong and close family relations, and most would find it awkward to approach a “close relative” to be their surrogate. Conservative families, in particular, would view it as a disgrace and look down upon the woman for her inability to have a child. The man, on the other hand, will not be questioned, and what did prove to be a boon is the popular culture that familiarises the idea of victimising the woman no matter what. 

Supposing that families do get over their conservativeness and agree for a close relative to be a surrogate, there is a high possibility that a poorer relative would be forced to act as one. And the whole thing could be carried on secretly because the dignity of the family has to be upheld at all costs.

In other circumstances, where both sides of the party are willing, the surrogate might expect extra compensation — illegally under the table of course, and the “biological” parents would be forced to comply to prevent any feud. 

Another reason why altruistic surrogacy might be a problem is the toll it would take on the surrogate mother’s mental health. The child at all times would be near both the biological mother and the surrogate mother since they would belong in the extended family. The biological parents might be plagued with a feeling of insecurity, the surrogate by a feeling of helplessness, and the child by confusion. The situation within the family would also become tense and might disrupt the structure [5].

This is just another form of labour that is physically, emotionally and socially detrimental. The whole structure is problematic; it straightaway leads to the violation of Article 21 (Right to Life and Personal Liberties) and Article 23 (Prohibition of Traffic in Human Beings and Forced Labour).

The proposed development of women by safeguarding her human rights is happening; but is the Government taking responsibility of looking after these women after the implementation of the Bill or not is to be questioned. What happens after the development (in this case, empowering women who were being exploited) takes place? Who takes charge of making the necessary tweaks to correct the flawed parts of the Bill?

Empowerment of Women or Transgression of Constitutional Laws?

surrogacy india
Surrogacy is a means to livelihood for many women in India.

India became a hub of commercial surrogacy because women were a part of it willingly. To understand why women would choose such a tiresome and risky process for their livelihood, we must question the Government — most importantly, what the shortcomings were. 

Haq says, “The basic purpose of development is to enlarge people’s choices. (Haq, 1995, pp. 14)” But the Indian Government has done nothing but impose the West replicated models of development on the citizens without determining whether those will be suitable for a country like India or not. Haq also points out that the “formation of human capabilities” (like knowledge, skills) and again using those human capabilities for the prospect of “employment and other productive activities” would lead to “human development”. 

But in India, the condition of women is so miserable that sometimes she is left with no choice of livelihood other than taking up surrogacy. Due to the lack of access to proper education, many women in India remain illiterate throughout their life; there is no concrete system in place which would help them build their capabilities and get a job. 

Haq says for that to happen there needs to be a “restructuration of the economic and political powers”. The Indian development scenario if seen critically is nothing but pure elitist; time and again, it fails to put people in the centre of the reform. Haq says there are four very crucial components of human development: equity, sustainability, productivity and empowerment (Haq, 1995).

If development, as promised by the Government, caters to nothing but the people and puts their choices as their priorities, then Haq argues that there must be “equity” in the society. The opportunities that are available to all the citizens are nowhere equitable; starting from the access to clean toilets to basic education. 

Women who are forced to take up surrogacy as a means of livelihood should be provided with better alternatives that would not require them to risk their lives. Until and unless the women are provided with opportunities to enhance their capabilities, they would not prove to be productive and, hence, empowerment will become a long shot. Considering the present condition of women in the country, one can identify the gap in the human development paradigm and reality very easily.

The proposed law is also a challenge to Article 19 in general, and Article 19(1) (g) specifically, which guarantees the “freedom of trade and profession” in India. The surrogacy industry is the livelihood for not only the surrogate mothers but also the numerous private surrogacy clinics in the country. A blanket ban on commercial surrogacy cannot be justified as a reasonable restriction because it jeopardises the interests of multiple stakeholders in this multi-billion-dollar industry [6].

A woman has the right to life and livelihood as per the Fundamental Rights in the Indian constitution. Therefore, she also has the right to make her livelihood opportunities better, even by becoming a surrogate as well. So it was detrimental to stop commercial surrogacy in India completely. Instead, it should have been appropriately regulated. If the Government took initiatives to register each surrogacy and safeguard the rights of both the parties involved, then it would have been a much easier and hassle-free process. 

Illich also ponders upon in his articles about the requirement of counter research on the development alternatives to the “current pre-packaged solutions”. He says people have refrained from going about with the counter research because it would require structural adjustments to the already advanced technology; and due to obvious lack of capital in the Third World. Illich says it is not, however, an easy task to master, one has to doubt everything that seems odd and they have to persuade people to do the same (Illich, 1997).

Conclusion

The Bill, however problematic it may be in all its aspects, has succeeded in actually saving women who were pushed into the business of “renting” their womb forcibly. It has protected the rights of all those women who were unlawfully pushed to be a part of this money-making process. Commercial surrogacy done under coercion is not a moral act because the surrogate mother becomes only a means towards reaching an end.

However, as an alternative, the Government should more actively intervene and launch programs to promote child adoption and make the prospective parents aware of several unfortunate children who end up in orphanages. They too deserve a loving and caring home. But that is also a far-fetched alternative considering the social stigma attached to the whole process, which makes it difficult for the adopted child as well as the adoptive parents to live peacefully. 

There needs to be a major restructuring of power and authority mechanisms in the society which are still rigid and conservative in their approach. Only then can we envision a future where women can choose to be a part of whatever they think works best for them without authoritative men intervening and deciding or safeguarding their wishes and choices.

References

Aggarwal, Simran and Garg, LovishThe new Surrogacy law in India fails to balance regulation and rights”. LSE Human Rights (Blog), 23 November, 2016.

Bindel, JulieOutsourcing pregnancy: a visit to India’s surrogacy clinics. The Guardian, 1 April 2016.

Brewer, Andrew. Dependency Theories, Marxist Theories of Imperialism (2nd edition). Routledge, 1990.

Bromfield, Nicole. F and Rotabi, Karen Smith. Global Surrogacy, Exploitation, Human Rights and International Private Law: A Pragmatic Stance and Policy Recommendations. Global Social Welfare Vol. 1, 123–135, 2014.  

Chatterjee, Partha. Colonialism, Nationalism, and Colonized Women: the Contest in India. American Ethnologist, Vol. 16, No. 4, November 1989 (pp. 622–633).

Chaudhuri, Maitreyee. Citizens, Workers and Emblems of Culture: An Analysis of the First Plan Document on Women, Women’s Studies in India: A Reader (Ed) Mary John, Penguin Publishers, New Delhi, 2000 (pp. 143–148).

Chaudhuri, Maitreyee. Gender in the Making of the Indian Nation-State. Sociological Bulletin, Vol. 48, No. 1–2, March 1999 (pp. 113–133).

Frank, Andre Gunder. The Development of the Underdeveloped, Latin America: Underdevelopment or Revolution, Essays on the Development of the Underdeveloped and the Immediate Enemy (1st edition). Monthly Review Press, 1969.

Haq, Mahbub Ul. Towards a New Development Paradigm, Reflections on Human Development. Oxford University Press, New York, 1995 (pp. 13–24).

Illich, Evan. Development as Planned Poverty The Post Development Studies Reader (Editors) Majid Rahnema with Victoria Bawtree. Zed Books, New York, 1997 (pp. 94–102).

McMichael, Philip. Instituting the Globalization Project, Development and Social Change: A Global Perspective. Sage Publications, 2017.

Munjal-Shankar, Diksha. Commercial Surrogacy in India: Vulnerability Contextualized. Journal of the Indian Law Institute, Vol. 58, No. 3 (July–September 2016) (pp. 350–366).

Nandy, Ashis. Evaluating Utopia: Considerations for a Dialogue of Cultures and Faiths, Traditions, Tyranny and Utopias: Essays in the Politics of Awareness. Oxford University Press, 1987.

Parks, Jennifer. Feminist issues in domestic and transnational surrogacy: The case of Japan. International Journal of Feminist Approaches to Bioethics, Vol. 7, No. 2, Transnational Reproductive Travel (Fall 2014) (pp. 121–143).

The Surrogacy (Regulation) Bill, 2019. Bill No. 156 of 2019 (LS).

Notes

[1] Source: The Surrogacy (Regulation) Bill, 2019.

[2] Mother India, a 1957 film directed by Mehboob Khan. The protagonist, Radha, who is shown to be righteous, keeps on fighting to raise her children by keeping her integrity battling with poverty alongside. Rather than focusing on her being poor, the limelight is always on her dignity and purity.

[3] Bharat Mata: Initially, a painting by Abanindranath Tagore (1905). Also, used as a personification of India as the Mother Goddess.

[4] Sachdev, Chhavi. Once the go-to place for surrogacy, India tightens control over its baby industry. The World, 4 July, 2018.

[5] The future of Altruistic Surrogacy in India.

[6] Aggarwal, Simran and Garg, Lovish. The new Surrogacy law in India fails to balance regulation and rights. LSE Human Rights (Blog), 23 November, 2016.

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