Diorama of SURROGATES: Surrogacy Draft Bill is a Legislative Disservice

This article is written by Yuvina Goyal. Yuvina is a third-year student from NUJS, Kolkata.


In the midst of buckets of multifarious and multidimensional challenges against the Draft Surrogacy (Regulation) Bill, 2016, the effect of the same on one of the most crucial stakeholder in the whole surrogacy setup, that is the surrogate mother herself, have not been voiced much. No doubt such strict legislation has been drafted majorly in order to check the menace of renting of wombs by the women from vulnerable and poor sections of the society and their augmenting exploitation at the hand of the middlemen, commissioning parents and even the former’s family, the complete ban, in the Bill, on the commercial surrogacy comes as a threat to the livelihood of many poor women, who have been able to educate their children, establish their business and financially support their families through surrogacy. Thence, the road leading to ideal “Parivar”, through only altruistic surrogacy as a legal option, though constructed in good intention and pious tar, leads all those women, who have hoped for a better livelihood by renting their wombs, to hell and nowhere else.

Notwithstanding the fact that, such potential surrogates are approached for their service to meet pressing want of a child or satiate whims and desires, The compensation which poor young mothers are getting through surrogacy will stop due to the new law. This in itself is problematic as it could violate the woman’s fundamental right to livelihood – in this case through surrogacy – as guaranteed under Article 21 of the constitution. Prohibiting commercial surrogacy in favour of surrogates from within the family may thereby turn surrogacy into a black market business, or lead to the victimisation and coercion of subjugated and oppressed women in marital homes to bear a child for their relative.

I completely fail to understand what is wrong in having a quid pro quo for the service rendered by the surrogate mother as it’s a win-win situation for both the parties to the surrogacy contract. Isn’t lending a womb for nine months anyway a better and convenient situation than washing dishes or working in the red-light area or as bonded labourer to earn a livelihood?

The proposed legislation may do more harm than good by leading to the exploitation of surrogates through coercion and undue influence or by trafficking them to permissible jurisdictions.

The need of the hour is to regulate the unregulated ‘surrogacy market’ and surely reassess and emend the proposed law on surrogacy to safeguard the constitutional rights of the stakeholders considering the social, legal and ethical dynamics of this sensitive subject. A straight forward ban is not the solution to the problems of the economically thin-skinned women, who in order to survive and sustain are bulldozed to serve in the baby-factory, even otherwise, it is entirely a matter of their individual choice.

The claim of the government is that they are not restricting the rights of any stakeholder and abashing the practice of surrogacy but only restricting it and still the doors of altruistic surrogacy have been kept open. Accepting this, I am totally in the favour of protecting the stakeholders involved and bringing in a law to that effect. But believe me, ‘Regulation’ in commercial surrogacy, as the title of the Bill suggests, is the need in the crunch of present times and a blanket no-no to the practice is not acceptable at all.  Respecting this voluntary service rather than curbing the incentive for rendering the same their rights to it should be secured by legally regularising both the formation and enforcement of the surrogacy agreements and by providing schemes aiding the maintenance of mental and physical health of both the mother and the child and by introducing several such noble policies.

Now, what should be done to a tree bearing sweet and nutritious fruits otherwise, but there have been incidents of smuggling of the same or the fertility of the soil in which it’s being grown is being decreased? Obviously, the trading of such fruits will be regularised and checked or fertilisers to the soil would be added in the latter case. But, one wouldn’t simply chop away the tree or WOULD YOU?

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