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NHARIKA BAPNA | 6 DECEMBER, 2016

Surrogacy Law Falls Short: Will Not Check Exploitation Of Surrogate Mothers


NEW DELHI: The recently introduced Surrogacy (Regulation) Bill, 2016 betrays its objective of prohibiting the “potential exploitation of surrogate mothers.” By legalising surrogacy in one form the Government is not being true to its objective of preventing exploitation of women rather, this partial ban on the industry is creating a backdoor for commercial surrogacy.

While the Bill maintains that its ultimate objective is to prohibit any exploitation of surrogate mothers it gives leeway for the same by allowing payment of medical expenses and insurance coverage to be made to “the dependents or representative of the surrogate mother” thereby not leaving the economic reins of the gains from surrogacy procedure exclusively with the surrogate mother. Further, the appropriate authority, as envisaged by this Bill, has the potential to defeat its objective of preventing exploitation of surrogate mothers. Not only is this authority vested with vast powers - such as searching any place on the basis of suspicion of contravention of this Bill - no court can take cognizance of an offence punishable under this Bill without a written complaint made by it. Even if a person or a social organisation wants to report an offence they will have to first give a notice of not less than fifteen days to the appropriate authority of the alleged offence and their intention to make a complaint to the court.

Before drafting this provision did the government envisage a possibility where the appropriate authority misuses its powers on being notified of an offence to influence the case maliciously – possibly by preventing filing of complaint in the court? Owing to this access to justice has become contingent on notification to the largely bureaucratic appropriate authority. Not only is this a travesty of justice but it also a serious threat to separation of powers envisaged by the constitution between the executive, legislature and the judiciary. The appropriate authority - comprising largely of bureaucrats – has been a made a threshold before the judiciary can be approached by an aggrieved person.

It is only a matter of time before it is realised that the commitment of the Bill to ensure that women endure surrogacy procedure once in their life time faces a huge implementation challenge. Presuming that all surrogacy procedures will be undertaken in the registered surrogacy clinics, the only truly efficient way to ensure this would be through the creation of a central database where all the registered surrogacy clinics would be required to submit details of women undergoing surrogacy procedures. However, past legislative efforts to maintain such central databases to prevent exploitation of women have not been successfully maintained/ implemented as is evidenced in the case of Sexual Harassment of Women at Workplace Act, 2013 as well as the Pre-Conception Post-Natal Diagnostic Techniques Act, 1994. But there are other key questions that come to mind too – Who will maintain and secure this central database? Who all will be allowed to access this database - considering there would be privacy concerns in case families do not want such information to be publicly available?

There is no reason for allowing altruistic but not commercial surrogacy in our society if the exploitation of surrogate mothers has to be prevented. It is plausible that to take advantage of altruistic surrogacy those women who do not have a sizeable bargaining power in the family or are economically dependent – like daughter-in-laws or widows or unmarried single women - are coerced to be surrogate mothers by the other family members.

There is a reason why many states in the United States of America, the Nordic countries, European countries such as Germany, France, Italy and closer home countries like Thailand and China have banned all surrogacy arrangements. The reason is that legislation is not the perfect tool for intervention to prevent the exploitation of surrogate mothers. There is also precedent for the failure of the legal framework envisaged by this Bill. The Pre-Conception Post-Natal Diagnostic Techniques Act, 1994 too conceived under Section 17A of an appropriate authority with powers same as the authority under the Surrogacy (Regulation) Bill, 2016. This authority now is allegedly misusing its powers to practice extortion and harass medical professionals possessing ultrasound machines in their clinics rather than preventing exploitation of pregnant women and female foeticide.

In the current form the Surrogacy (Regulation) Bill, 2016 with its powerful conception of appropriate authority, undermining unqualified access to courts and misplaced faith in the virtues of altruistic surrogacy runs the risk of not preventing exploitation of surrogate mothers or effectively regulating the surrogacy industry.

The recently introduced Surrogacy (Regulation) Bill, 2016 betrays its objective of prohibiting the “potential exploitation of surrogate mothers.” By legalising surrogacy in one form the Government is not being true to its objective of preventing exploitation of women rather, this partial ban on the industry is creating a backdoor for commercial surrogacy.

While the Bill maintains that its ultimate objective is to prohibit any exploitation of surrogate mothers it gives leeway for the same by allowing payment of medical expenses and insurance coverage to be made to “the dependents or representative of the surrogate mother” thereby not leaving the economic reins of the gains from surrogacy procedure exclusively with the surrogate mother. Further, the appropriate authority, as envisaged by this Bill, has the potential to defeat its objective of preventing exploitation of surrogate mothers. Not only is this authority vested with vast powers - such as searching any place on the basis of suspicion of contravention of this Bill - no court can take cognizance of an offence punishable under this Bill without a written complaint made by it. Even if a person or a social organisation wants to report an offence they will have to first give a notice of not less than fifteen days to the appropriate authority of the alleged offence and their intention to make a complaint to the court.

Before drafting this provision did the government envisage a possibility where the appropriate authority misuses its powers on being notified of an offence to influence the case maliciously – possibly by preventing filing of complaint in the court? Owing to this access to justice has become contingent on notification to the largely bureaucratic appropriate authority. Not only is this a travesty of justice but it also a serious threat to separation of powers envisaged by the constitution between the executive, legislature and the judiciary. The appropriate authority - comprising largely of bureaucrats – has been a made a threshold before the judiciary can be approached by an aggrieved person.

It is only a matter of time before it is realised that the commitment of the Bill to ensure that women endure surrogacy procedure once in their life time faces a huge implementation challenge. Presuming that all surrogacy procedures will be undertaken in the registered surrogacy clinics, the only truly efficient way to ensure this would be through the creation of a central database where all the registered surrogacy clinics would be required to submit details of women undergoing surrogacy procedures. However, past legislative efforts to maintain such central databases to prevent exploitation of women have not been successfully maintained/ implemented as is evidenced in the case of Sexual Harassment of Women at Workplace Act, 2013 as well as the Pre-Conception Post-Natal Diagnostic Techniques Act, 1994. But there are other key questions that come to mind too – Who will maintain and secure this central database? Who all will be allowed to access this database - considering there would be privacy concerns in case families do not want such information to be publicly available?

There is no reason for allowing altruistic but not commercial surrogacy in our society if the exploitation of surrogate mothers has to be prevented. It is plausible that to take advantage of altruistic surrogacy those women who do not have a sizeable bargaining power in the family or are economically dependent – like daughter-in-laws or widows or unmarried single women - are coerced to be surrogate mothers by the other family members. There is a reason why many states in the United States of America, the Nordic countries, European countries such as Germany, France, Italy and closer home countries like Thailand and China have banned all surrogacy arrangements. The reason is that legislation is not the perfect tool for intervention to prevent the exploitation of surrogate mothers. There is also precedent for the failure of the legal framework envisaged by this Bill. The Pre-Conception Post-Natal Diagnostic Techniques Act, 1994 too conceived under Section 17A of an appropriate authority with powers same as the authority under the Surrogacy (Regulation) Bill, 2016. This authority now is allegedly misusing its powers to practice extortion and harass medical professionals possessing ultrasound machines in their clinics rather than preventing exploitation of pregnant women and female foeticide.

In the current form the Surrogacy (Regulation) Bill, 2016 with its powerful conception of appropriate authority, undermining unqualified access to courts and misplaced faith in the virtues of altruistic surrogacy runs the risk of not preventing the exploitation of surrogate mothers or effectively regulating the surrogacy industry.

(NHARIKA BAPNA is a lawyer)

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