The Surrogacy ( Regulation) Bill 2016 is approved by the cabinet and proposes -- for the first time -- “legalization of altruistic surrogacy in India,” where in only a close family relative of the couple is permitted to act as surrogate mother in return for “monetary payment limited to medical expenses related to surrogate pregnancy” and nothing over and above the same. This implies “charitable or altruistic” motives as the cardinal consideration for women to act as surrogate mothers. On the other side, this Bill imposes a “blanket ban on commercial surrogacy” and imposes stringent “penal sanctions” for violating the provisions of the Bill.

This is because the law makers identify exploitation of surrogate mothers only with commercial surrogacy but under the existing patriarchal family set up with male domination and subordinated position of women, coupled with extensive domestic violence and assault, there remains the large possibility of emotional, familial pressure or coercion on the woman to act as surrogate. Her consent to may not be fair or voluntary. This is testified in the case of death of an Indian surrogate mother R.Lal (29) who was forcefully made the surrogate carrier of her sister-in-law’s baby by her husband and in-laws in order to compensate for insufficiency of dowry brought by her despite her unwillingness and cardiac problems. She died of a massive heart attack while giving birth to a surrogate baby boy at a hospital in Ranchi , Jharkhand , on July 26, 2014. There may be many such cases which go unreported considering the personal family nature of arrangement, hence clearly altruistic surrogacy is not free from all exploitation, issues of lack of consent.

The Bill sets the precondition of “only close relatives of couples to be surrogate”, but in the present socio cultural familial context of India -- where impotency and infertility is associated with stigma, ridicule, name calling of women particularly within the family -- such disclosure of medical incapacity of women to bear child before her in laws, family members will put her at greater risk of domestic violence, abuse, name shaming, loss of respect and may even cause eviction of such women from the home, annulment of marriage, etc. This is also breach of privacy, confidentiality of women.

This pre condition of finding a close relative to be surrogate alone is problematic in more ways than one as it firstly shifts an additional burden from the ART Banks on to the infertile couples who are already distressed to secure themselves a surrogate mother among their close relatives. This also results in reducing the possibility of finding a surrogate mother. In such cases where the couple may not find such close relative to act as surrogate mother, their chances of availing surrogacy is curtailed. This implicitly eschews the state responsibility to provide necessary assistance to such couples and makes the couple solely reliable for the same. Eventually this impairs, deprives the reproductive choice, freedom of medically needy couple to opt for such procreative means to have children with genetic connection and this largely affects such couples for whom surrogacy is the only option to have children in natural course. It may be noted that the earlier, the Assisted Reproductive Technologies Bill 2010l 2014 allowed both relative, known, and unknown persons to act as surrogate mother and directed the ART Banks to assist the couple in securing surrogate mother.

This precondition is also not applicable in families with the medical history of congenital or genetic diseases, the close relative surrogate may not be medically fit condition, there is imminent risk of passing on such diseases on to the child. On the contrary there is particularly need for surrogates from outside the close family relatives in the same.

The surrogate and couples being close relatives sharing the same ancestry, familial or kinship ties, there is greater likelihood of surrogate mother developing emotional attachment to the surrogate child thereby refuse to hand over the child causing family disputes, emotional wrangles surrounding the custody, parentage of child.

Another issue is the adverse psychological impact on surrogate child, surrogate mother and the child being in close proximity within the same family may raise issues on circumstances leading to the birth of such child , negatively impact on the identity, relationship with parents, such child may necessitate adequate counselling.

Altruistic surrogacy at comparative international level-

“Altruistic surrogacy” in absolute sense is nowhere practiced in the world at present, even in those legal jurisdictions where altruistic surrogacy is legalized as UK, Canada, Australia, there is a range of monetary payments permitted to surrogate mother as “reasonable compensation” covering expenses for health screening, legal, physical, psychological counselling, child support or crèche, living, travelling costs, loss of wages, nutritional diet, maternity clothing, insurance, post delivery care among others at the same time, this scheme of payment is inclusive for such other expenses to ensure better health, wellbeing of surrogate mother. Hence there is no such absolute altruism in true sense. On the contrary the Surrogacy bill 2016 emphasizes on the exhaustive, rigid payment control permitting only medical expenditures and no others by government overriding the main concern of meeting the varied needs of the surrogate mothers who are barely lining below the poverty line in India.

It is also observed that Altruistic surrogacy may work only in those legal jurisdictions where there is favourable government policy, adequate socio economic safeguards including state sponsored insurance, social security measures, appropriate maternal health care facilities , also decent standard of living of the stakeholders including surrogate mother, couple in society so that the surrogate mother is not additionally burdened and there is adequate risk cover and sharing, This assumes greater significance in India which one of the highest maternal mortality rates in the world, with bare minimal maternal or reproductive health services , nil social security measures, under such conditions, legalizing altruistic surrogacy may be detrimental to the surrogate mother or may not necessarily be in the best interest of surrogate mother.

Another concern is that altruistic surrogacy very rarely does takes place. Pursuant to a recent media report from different cities in India , it has been found that medical experts running infertility clinics offering surrogacy has only come across a handful of altruistic surrogacy in their over a decade long practice. (Do close relatives lend their wombs to childless couples? | TNN | Aug 28, 2016.)

Parallely, altruistic surrogacy has failed to work even in those foreign nations which legalized the same. Australia is a classic instance where altruistic surrogacy has failed to work miserably owing to lack of availability of women to act as surrogate mother driving Australians to commission surrogacy overseas in large numbers.

On the lop side, the Australian family courts, policy makers are faced with the issue of determination of status of such surrogate children born to Australians under overseas commercial surrogacy, these children run the risk of denial of entry, passport, citizenship, birth registration in Australia as commercial surrogacy is banned in Australia, leaving them parentless or stateless! Following these vexing legal complexities there is presently a proposal to legalize Commercial surrogacy in Western Australia.

A major legal drawback associated with such altruistic surrogacy arrangement is that the binding force of surrogacy arrangement is not based on statutory force of contract law rather on the personal familial ties. The working of the entire arrangement dependant on the personal will, personal relationship between the surrogate mother and the couple.

It may be noted that under those legal jurisdictions where altruistic surrogacy is legalized the surrogacy agreement is held unenforceable, this is true in case of UK. Such altruistic surrogacy agreements involving the family members based on personal convenience, feasibility need not be necessarily formally written down, nor necessarily notarized on bond paper other legal compliances etc.

Such agreements may have no standing before the court of law. In case of any disagreements between the parties to the surrogacy arrangement over refusal to comply with their promises or handing over of child there is no means to either hole the other party accountable no there is any legal recourse enforce such agreement before the court of law.

A grave repercussions of altruistic surrogacy is the likelihood of surrogacy being driven underground involving illicit inter country movement of women to be surrogate mothers for monetary returns into foreign nations or safe surrogacy heavens globally. This may subject the surrogate to worst sufferings including hormonal drugs over dosages, multiple embryo implants leading to multiple pregnancies , successive foetal reductions or abortion , even death, along with this crimes as trafficking, abduction, confinement of women to be surrogate mothers may increase as well.]

Another issue under the Bill is the severe criminalization of commercial surrogacy which imposes a ten year imprisonment with ten lakh rupees fine for violation of the provisions of the Bill. This carries the imminent risk of grant of citizenship, parentage of surrogate child born overseas under a commercial surrogacy arrangement to an Indian couple and subjecting such infertile couples , behind bars for commissioning commercial overseas. This is one of the most alarming implications flowing from this bill.

In the light of a series of implicit contesting issues, legalization of such altruistic surrogacy does not appear panacea for all evils! The implication, issues flowing out of such altruistic surrogacy needs to be thought through.

(The writer is a Ph.D research Scholar National Law School Bangalore)