On December 19, 2018, the Surrogacy (Regulation) Bill 2016 was passed by Lok Sabha, amidst widespread criticism from the LGBTQIA community. In addition to banning commercial surrogacy, it further restricts surrogacy to infertile married couples and it further stipulates that the surrogate mother should be a “close relative” to the “couple”. As of now, the bill defines couples as legally married Indian man and woman above the age of 21 and 18.
In 2009, the Law Commission of India observed that foreign nationals were using surrogacy arrangements in India. The commission also said that the lack of a comprehensive legal framework regarding surrogacy would lead to exploitation of women acting as surrogate mothers and therefore recommended the banning of commercial surrogacy. A government notification in 2015 prohibited foreign nationals from opting for surrogacy in India.
The current bill will ban same-sex couples, single persons and live-in partners from opting for surrogacy.
The bill will only be enacted after it is passed in the Rajya Sabha. However, the bill was passed in Lok Sabha with very little debate. Dr Kakoli Ghosh Dastidar, MP from All India Trinamool Congress and one of the few to speak on it, asked why there was no mention of same-sex couples in the bill. “Male couple require a surrogate mother while women couple may not require a surrogate mother but we have to include them in our bill to do justice to them”, demanded Dr Kakoli Ghosh. She also alleged that the drafting of the bill was hasty and hence demanded a new bill that was more just. Supriya Sule of NCP called the bill “good but not modern enough”.
This bill comes on the heels of the supreme court’s landmark order that decriminalised same-sex consensual sex in September 2018. The bill, however, is a step backwards as it clearly favours hetro sexual couples and denies same-sex couples the chance to opt for surrogacy. It has also excluded people in live in relationships which is again recognised by the Supreme Court in India. The bill also bans a surrogate mother from receiving any financial compensation or benefit which will ultimately lead to the exploitation of surrogate mothers and forced labour.
The bill has also not clearly defined the term ‘close relatives’ who can become the surrogate mother. It also states that only couples who are married for five years and found to be infertile would be allowed to opt for surrogacy. This according to many critics at a time when men and women get married beyond the age of 30 or 40 will reduce the quality of gamete reducing their chances of having children.
The bill reinforces traditional conservative ideas of family and relationships and stipulates that surrogates can only be relatives. This means that only couples that have the support of an extended family can avail surrogacy. Additionally, people who are in interreligious and inter-caste relationships would find it difficult and thus, the bill will only help couples whose marriages are approved by family members.
The bill came into being after a surge in the number of couples coming from foreign countries to India for surrogacy before 2015. The bill was then introduced for the first time in 2016 after recommendations from the National law commission to ban commercial surrogacy. The parliament standing committee on health and welfare in its 2017 report said that the surrogacy industry required “adequate legislative norm-setting and robust regulatory oversight.” The government instead of providing the much needed regulatory mechanism and the required safeguards were hell-bent on banning commercial surrogacy altogether. This would result in the industry going underground and increase the exploitation of surrogate mothers.
The standing committee report also said that the demand that surrogate mothers should be a “relative” of the couple in the bill would lead to exploitation of financially backward members of a family for surrogacy. The report also noted the fact that woman in India have very little say in the decision made in most households which would lead to a situation where women are forced to bear children for other family members, without proper compensation. The report also states the practice of surrogacy to close relatives as ‘non-pragmatic and unworkable but also has no connection with the object to stop the exploitation of surrogates envisaged in the proposed legislation’.
It also points out that the surrogate mother and child are relatives and they might develop an emotional bond and such an attachment could be detrimental to the psychological and mental health of the child. The committee also examined other options of incomes available for surrogate mothers and noted that many of the alternatives were more hazardous hence concluded that it won’t be proper on the part of the government to deny them a legitimate source of income.
Sukhdeep Singh the founding editor Gaylaxy magazine told TWJ that the hasty passing of the bill was not an accident. “It was cleverly slipped in between the Rafale deal disruptions in Lok Sabha to avoid scrutiny and discussion. It is a calculated move to exclude the LGBTQ community and undermine the decriminalization of homosexuality by the Supreme court defining family as a heterosexual unit,” he said. He also said that Sushma Swaraj had claimed in a press conference in 2016 after the union cabinet approved the Surrogacy bill that the LGBTQ community opting for surrogacy was against the cultural ethos of the country. He added that the surrogacy bill and the trans bill which were passed just days apart, are concerted attacks by the government, against the LGBTQ community, after they failed to defend section 377 in the courts.