As the nation debated the implications of diluting Article 370, Lok Sabha passed the Surrogacy (Regulation) Bill. Though the Supreme Court declared surrogacy to be legal in 2002, it has remained unregulated. The practice picked up in the 1990s when foreigners started coming to India.
According to Gargi Mishra, a gender rights lawyer with Sama Resource Group for Women and Health,
“It was a relatively cheap and good technology. There were surrogate mothers who were willing to do this for a relatively cheaper price and there were no laws prohibiting it. So it became a big market for commercial surrogacy here.”
However, unregulated commercial surrogacy has given rise to women being exploited and children being abandoned.
“We heard of surrogate mothers being locked up in hostels, not being allowed to move out, not being paid the money that they were supposed to be given. If twins were born and if one had a disability, the intending parents refused to take that child.”
This led to the government tabling Surrogacy (Regulation) Bill which aims to completely ban and criminalise commercial surrogacy. But the bill has evoked strong reactions from activists and lawyers who say that it is against women’s empowerment.
“First, if you’re banning a practice that is already happening and is worth millions of dollars, it’s going to go underground. When it goes underground, there is going to be no regulation and there will definitely be even lesser power of surrogate mothers over what happens to them. If something happens, they can’t go to the police because there’s going to be a lot of pressure on them to make sure that the doctors or the intending parents are not penalised.”
It also has a provision where only ‘close relatives’ can become surrogate mothers and they won’t be able to take any money for it because of surrogacy being deemed ethical and altruistic.
“Now when you say only ‘close relatives’ can become mothers, you’re forgetting the kind of patriarchal families that we live in. This is going to happen in a very private, very invisibilized sphere of the family. So that will lead to greater exploitation of the surrogate mothers.”
The Bill also doesn’t allow unmarried people to have kids and refuses the LGBTQ community their right to form a family.
“The bill basically allows married heterosexual couples who have been married for at least 5 years to avail surrogacy. So it doesn’t allow single women, it doesn’t allow divorced persons, it does not allow homosexuals, transgender persons to access surrogacy…The Supreme Court recognises live-in relationships, it recognises children born out of live-in relationships, so why would you not allow surrogacy in these kinds of cases? Then it becomes discriminatory.”
According to Mishra, before making a law on surrogacy, we need to see why women choose to become mothers.
“So when we did a study a few years ago, we spoke to women who said that they chose to become surrogate mothers they get paid Rs 2 lakhs or Rs 3 lakhs. That’s money that they will not get for the whole year that they will get for nine months. And the other kind of work that they do whether it’s domestic labour, working in the garment industry, or working in the construction industry, it’s even more precarious, it pays much lesser and requires more bodily labour from them. So it’s their considered decision to become surrogate mothers.”