In the Indian Society, procreation defines and fulfills marriage and strengthens the marital bond between a man and a woman. However, due to various physical and medical factors, a wife could be unable to conceive or successfully deliver her child. Such state of infertility shatters the dream of the couple who desire to have one’s own flesh and blood as their progeny. In India, infertility is still considered to be a social taboo which weakens the marital bond and casts a dark spell on the wife’s competency to perform her inherent duty. In order to overcome this defect, science has opened doors for various artificial or assisted techniques, breaking the shackles of traditional ways of procreation. One such remedy for infertile couple/s to enjoy parentage is by resorting to the act of surrogacy over adoption.
The issue of surrogacy being ethical/unethical; legal/illegal; permitted/prohibited has been deliberated since Baby M’s case. Finally, it was in 2018 that India allowed altruistic surrogacy and completely forbid commercial surrogacy in the wake of ‘Reproductive Trafficking’.
Surrogacy – Altruistic surrogacy
Surrogate is derived from a word ‘Surrogatus’ which means substitute. This is a kind of substituted arrangement, wherein a close female relative of an intending couple agrees to act as a surrogate and bears/ delivers/ transfers the child she begets to the couple without any monetary consideration. Such gratuitous services have been practiced since time immemorial behind closed doors, on the footing of charitable services.
Right to privacy & Reproductive autonomy
The Hon’ble Supreme Court has time and again clearly emphasized that the Right to Privacy is a fundamental right and includes personal autonomy relating to the body, mind and to making choices, as well as informational privacy. The Hon’ble SC recognized the constitutional right of a woman to exercise her reproductive choices as part of personal liberty under Article 21 of the Indian Constitution. While delivering the landmark Aadhaar judgment, the bench reiterated the observations made on reproductive rights such as woman’s freedom to carry a pregnancy to full term, to give birth to an offspring and raise a child as sine qua non of woman’s right to privacy, dignity and bodily integrity.
The act of altruistic surrogacy doesn’t get labeled as ‘renting a womb’/ ‘commodification of babies’ yet suffers from serious repercussions on the life of the close relative serving as the surrogate. In the given patriarchal family set up characterized by male domination and subjugation of woman backed up by excessive domestic violence, harassment, mental torture to fulfill the needs of the husband’s family, a woman though related by affinity is exposed to all sorts of physical and mental pressure against her will to act as a surrogate. Therefore, the woman’s right to privacy gets infringed as she is made a victim of a new form of harassment in her marital home. She gets subjugated to fulfill the baby needs of her infertile marital relatives and succumb to this new kind of domestic violence.
As per the Convention on the Elimination of all form of Discrimination against Women (CEDAW), every woman needs to be treated equally with regard to her sexual and reproductive health. The State is under an obligation to cater to the wellness of a woman and lay down steps to ensure that every woman enjoys reproductive freedom.
“The Beijing Platform for Action (1995) states that “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence”
In the above-mentioned scenario, few issues with regards to the 2018 Bill have to be carefully deliberated upon keeping in mind the Indian male-dominated society and the state of dejected woman:
- The Bill doesn’t clarify on the levels of infertility and which category of couples can opt for altruistic surrogacy.
- The Bill fails to define ‘close relative’ and the proximity of closeness to avail surrogacy service.
- The Bill fails to justify its stand taken in allowing surrogacy by a woman barring consideration (altruistic) and on the other hand prohibiting surrogacy with monetary benefits (commercial). In both cases, it is the woman’s body which undergoes the entire tedious process of embryo implantation/ bearing the child/ deprivation of her personal life/ loss of earnings/ risk associated with pregnancy/ pre-delivery and post-delivery health-related issues.
- By allowing altruistic surrogacy, the Bill has placed the life of a married woman in grave danger as infertility prevailing in her marital home may result in new forms of domestic violence on her, trying to satisfy the progeny needs of her husband’s family.
- The Bill fails to lay down a fair and due procedure to ascertain free consent of the woman willing to exercise her reproductive autonomy and act as a surrogate for altruistic surrogacy. In case of coercion/ undue influence/ fraud/ misrepresentation, Bill remains silent on penal actions.
All these loopholes make altruistic surrogacy susceptible to misuse and woman performing the act of surrogacy without any monetary consideration expose to a variety of harassment behind closed doors. In the present era, keeping in mind the alarming rise in infertility amongst married couples, changes in the family structure and late marriages, the lawmakers have to think in a logically to keep pace with the needs of the fast transforming society.
.The Surrogacy (Regulation) Bill 2018, Section 2(zb) defines Surrogacy, (July.14, 2019, 10:19PM),https://www.prsindia.org/uploads/media/Surrogacy/Surrogacy%20(Regulation)%20Bill,%202016.pdf
. Justice K. S. Puttaswamy (Retd.) v/s Union of India, (2017) 10 SCC 1 (India).
.United Nations Human Rights, Sexual and Reproductive Health Rights, (July.14, 2019, 10:13PM), https://www.ohchr.org/EN/Issues/Women/WRGS/Pages/HealthRights.aspx.
.United Nations, Beijing Declaration and Platform for Action 1995 (July.14, 2019, 10:16PM), http://www.genderequality.ie/en/GE/Pages/BeijingPlatform.