Her Rights, Our Choice: A Socio Legal analysis of Surrogacy Bill 2016
Her Rights, Our Choice: A Socio Legal analysis of Surrogacy Bill 2016
By – Nabeela Siddiqui*
“I hate to hear you talk about all women as if they were fine ladies instead of rational creatures. None of us want to be in calm waters all our lives.”
― Jane Austen, ‘Persuasion’
Malinowski defined ‘marriage’ as a contract for the production and maintenance of children. Almost all the social scientists of the world would affirm procreation, as one of the most and sometimes also the sole function of the institution of marriage. As a student of Law, one might term it as a ‘legitimate expectation’ in the Indian societal setting, by the partner and also the family.
But not all women are capable to conceive and bring a child for several reasons such as, the failure of the embryo to implant, repetitive miscarriages, pelvic disorder, hysterectomy, high blood pressure, liver and heart diseases.1 In such cases, the only way is to go either for adoption or ART.
Understanding Surrogacy from the lens of a basic Contract Law formula, we have The Reproductive Technology Council that provides for a crisp definition of ‘Surrogacy arrangement’ and ‘parties to a surrogacy arrangement’. Therefore according to Artificial Assisted Reproductive Technique guidelines ‘A surrogacy arrangement is an arrangement whereby a woman agrees to become or attempts to become pregnant and bear a child for another person or persons.’
Whereas ‘parties to a surrogacy arrangement’, includes -
Birth mother: The woman who intends to give birth to the child.
Birth father: The de jure or de facto husband of the birth mother.
Birth parent(s): It means birth mother, birth father or birth parents, whichever is applicable.
Commissioning parents: The person or persons, who intend(s) to rear the child borne by the birth mother.
Child: The child born as a result of a surrogacy arrangement. After the child’s birth, the child is a party to proceedings that affect him/her.
Now, the question that any ordinary prudent man might ponder upon would be – than what is the hue and cry against such a logically framed rational set up? Well, before jumping into the deep blue oceans of agreements and disagreements, let us go through a catena of cases that might awaken our grey matter to the legal responses quoted worldwide.
A few famous cases have minted international news, and have assisted to case some of the gaps in the local and global governing frameworks seeking to manage international surrogacy. The first landmark case was the 1987 birth of “baby M”, who was the product of traditional (nongestational) surrogacy in the US. Mary Beth Whitehead had contracted with William and Elizabeth Stern to act as a surrogate mother for them. She was impregnated with an embryo (made by her egg fertilized with Stern’s sperm). However, after delivering the baby, she sought to keep it as her own, in violation of the surrogate contract. The New Jersey Supreme Court ruled that “the government could not enforce a contract that orders a fit and loving mother to give away her child”.
In 2011, a similar case unfolded in the UK when a non-gestational surrogate fought to keep the child she had birthed, claiming that she feared for its safety once she learned of the commissioning parents’ violent tendencies. Surrogacy contracts are legal in the UK, but are not necessarily legally binding in court. Much like the case of M, family courts seek to rule in the professed pre-eminent interests of the child, regardless of the lucidity of the written agreement between the surrogate and clients.
When India legalized commercial surrogacy in 2002, it acted as a catalyst to a booming industry of foreign surrogacy provisions and fertility tourism, such so much that commercial surrogacy was banned in 2015. The question of foreign surrogacy became especially relevant after the case of “baby Manjhi” made national news in India. A Japanese couple used a gestational surrogate with a donor egg, but then divorced before the baby was born. The wife (who was not genetically related to the baby) did not want the child, but the husband (who was genetically related to the baby) did. However, at the time, Japanese law did not recognize surrogacy, and Indian law would not allow a single man to adopt a child. The case underlined the extent to which adoption and parentage laws continue to be sluggish to adapt to the environments presented by the new paradigm of assisted reproduction. None of the Indian laws covered whose child the baby (Manji) was: the woman who donated the egg, Pritiben, or Yuki Yamada. Furthermore, there was even a petition filed later in court that Dr. Patel was running a child trafficking racket by abusing the lack of surrogacy laws, and gaining easy money by enabling surrogacy. Although the case was determined and Baby Manji was given to her grandmother Emiko, this, as well as the booming surrogacy industry, the easy abandonment of children, and the exploitation of women who were forced to become surrogates many times in order to sustain their family; led to the inevitability of the 2016 bill.
Now, let us understand the important features of The Surrogacy (Regulation) Bill, 2016 , which are -
1. Surrogacy will not be allowed for –
Homosexual couples
Single parents
Couples in live-in relationships
Foreigners
Couples with children
Attempts at commercial surrogacy
2. Couple must be married for atleast 5 years.
3. Either one of couple must have proven infertility.
4. Only Indian citizens; NRIs are also not included
5. Age of couple: 23-50 for females and 26-55 for males.
6. Women can be surrogates only once and a married couple can only have one surrogate child.
7. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation.
8. Egg donation is banned.
Although the bill was made and passed with the intention of averting the exploitation, some of the clauses had both the medical community and the general public outraged. Firstly, the necessity of only a ‘relative’ being a surrogate mother. This confines the possibility of surrogacy to a very large extent, especially since most times, surrogacy becomes the very last option a couple chooses. One also needs to keep in mind, the stigma attached to adoption and the desire of ‘true’ heir (read: male) in Indian societies. The idea of “altruistic surrogacy” expressed in the Bill, as has been reported, greatly limits both probable surrogate mothers as well as couples wanting children: since women can become surrogates only once, and since couples who cannot find willing relatives have only one way out – adoption (In other countries altruistic surrogacy is allowed but is not limited to relatives, and one-time pregnancy).
Additionally, egg donations are also banned, perhaps in order to curb child trafficking and illegal surrogacy racket. However, again a blanket ban will not comfort in this situation. Policies need to be designed and laws need to be implemented in such a way that the issue is resolved without censoring the entire industry itself.
Additionally, limiting a woman’s surrogacy choice to only one time is in a large way limiting the income of those who survive on this business. Again, it comes down to the issue of consent. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be the one, which is most argued by Feminists is that the woman is “exploited” for her body. And this too, is a reasonable issue. However, if she is consenting and is being paid the proper amount, then this should not be an issue at all. Similarly, surrogacy laws should be fixed out in such a way that there is full consent of the woman in question. Here, instead of regulating the ways and policies in which a woman’s exploitation is prohibited, what the bill has done is eliminate the idea entirely.
One of the most antagonistic points of the bill is its flagrant ban on surrogacy rights of homosexual couples. The government’s apparent homophobia has come out in the open. Sushma Swaraj very clearly stated that surrogacy for a homosexual is against “Indian ethos”, although homosexuality has been constantly mentioned in various Indian texts. Now, even though this ban could be construed as a mere following of the law (Section 377 against “unnatural” intercourse), this would only make sense if heterosexual couples also violating the section were denied surrogacy rights. Since there is no way to conclusively find out, this is obviously a huge denial of justice to the queer community.
The bill does seem to do more harm than good. Although formulated to curb the exploitation of women and trafficking of children; again, it parades the general policy of a state banning and censoring, instead of looking at ways to use laws to regulate and improve the condition. Slowly but steadily, the government is proving true what was left unsaid all this while: homophobia, discrimination towards non-hetero normative relationships, and a paternalistic enforcement of cultural norms. This reminds me of a saying by Roman Payne, in ‘The Wanderess’, “She was free in her wildness. She was a wanderess, a drop of free water. She belonged to no man and to no city”. There is no need for the State to be the Big Brother. The bill exhibits a lack of understanding, that a woman should be able to make decisions when the question is with pertaining to her body.
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*Director – Research & Publications ProBono India
Pursuing Master’s in law (Constitutional Law and Legal Order) from University of Madras
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References -
1 Chavan, Pratibha Ganesh, ‘Psychological and Legal aspects of Surrogate Motherhood’, AIR Journal, 2008 at p. 104.
2 Assisted Reproductive Technology (ART) is a method in which pregnancy is caused by artificial or partially artificial means. The most commonly used ART procedures are Intrauterine Insemination (IUI), In Vitro Fertilization (IVF), Zygote Intrafallopian Transfer (GIFT), Tubal Embryo Transfer (TET), Zygote Intrafallopian Transfer (ZIFT) and Gestational Surrogacy.
3 http://www.rtc.org.au/glossary/
4 Blum L. Landmark fertility cases. [Accessed July 29, 2015]. Available from: http://abcnews.go.com/Nightline/story?id=128652&page=1&singlePage=true.
5 Allen V, Ellicott C, Eccles L. ‘I couldn’t give my baby away … they only wanted a toy’: surrogate mother fought legal battle after learning that would-be parents were violent. 2011. Available from: http://www.dailymail.co.uk/news/article-1356176/Surrogate-mother-wins-case-baby-giving-birth.html.
6 Manji Yamada v. Union of India, 2008(3) LS 194 (SC); Supreme 2008(7) P 287; JT 2008(11) P 150; AIR (SCW) 2008 P 6964.
7 The Surrogacy (Regulation) Bill, 2016 was introduced by Minister of Health and Family Welfare, Mr. J. P. Nadda in Lok Sabha on November 21, 2016. The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple and agrees to hand over the child after the birth to the intending couple.
