An article discussing the errors in the Surrogacy Bill of the Government of India, the gender issues arising out of it and the necessary amendments in this regard.
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The Surrogacy (Regulation) Bill, 2016 was passed in the Lok Sabha on December 19, 2018 by an oral vote. While the bill effectively imposes a ban on occupational surrogacy, it fails to effectively address the social, physical, mental, emotional and financial problems of surrogacy, which pose challenges to the health and safety of the surrogate mother and child.
Surrogacy is a method where couples who do not have a child of their own or who have a child with a mentally challenging or life-threatening illness can appoint a surrogate mother to give birth to their child. This arrangement can be of commercial or philanthropic nature.
Occupational surrogacy includes a contract that provides for financial compensation to the surrogate mother along with medical expenses related to the pregnancy. The philanthropic surrogacy system does not provide any financial assistance to the surrogate mother.
In 2015, the Indian government banned foreign women from coming to India and having children through surrogate mothers. Since then, surrogacy has been a controversial practice, and the issue has been debated in court on moral grounds. The Surrogacy (Regulation) Bill seeks to remove the discrepancy created by the lack of legal framework in the practice of commercial surrogacy, the decision to legalize the practice of philanthropic surrogacy had a direct impact on the exploitation of poor surrogate mothers.
The bill stipulates that a woman wishing to become a surrogate mother should be a close relative of the couple and her age should be between 25 and 35 years. In the philanthropic surrogacy method, the surrogate mother is expected to give the child into their custody without taking more money from the willing couple except for reasonable medical expenses. The bill further clarifies that any form of financial compensation or advertising for surrogacy is a punishable offense.
According to the bill, the aspiring parent couple must be Indian, the couple must be heterosexual and have been married for at least 5 years. The bill explicitly excludes people from the LGBTQI + community, unmarried couples living together and single parents from surrogacy facilities. The bill prevents some people from choosing surrogacy on the basis of their marital status, sexuality, sexual identity and orientation. But the bill fails to address whether a close relative or friend, who is willing to become a potential surrogate mother, has willingly agreed to come under any kind of coercion or family pressure to force her to agree.
Although the bill provides for medical compensation to the surrogate mother, the bill fails to address the mental, physical and emotional torment that the mother has to endure during and after pregnancy. The bill provides for medical expenses but does not mention the mental health of the surrogate mother.
According to a study by Ragon, the study, which focused on surrogate mothers who gave "love gifts" to couples who did not have children due to some natural cause, found that 26 percent of surrogate mothers had previously had abortions. During surrogate pregnancy, significant bonds are established between the mother and her fetus that further stimulate psychological and sensory bonding. There are many cases where the surrogate mother is not willing to give up her biological child. For example, the famous case of Baby M in which a legal battle was fought for a long time to get custody of the child. Pregnancy affects the mental state of the surrogate mother and she has to live under the mental burden of staying away from the child raised in her womb.
The ban on commercial surrogacy seems to protect women from physical abuse, but the bill makes some stereotypes and assumptions about the role of women in society. The bill reaffirms traditional notions of the family, where women are portrayed as natural and selfless nutritionists. This particular belief behind the disguise of selfless attitude has been highlighted and it has been celebrated. Although the family is the center of basic financial exchange, household activities, raising and caring for children. The torture that a surrogate mother has to endure has been termed as 'separate labor', excluding all dangers. Analyzing this accurately, Rosalie Berr said,
This bill, in a way, assumes that women have a natural tendency to serve as surrogates. The issue of medical compensation is not explicitly stated in the bill or in the written consent form obtained from the surrogate mother and thus the possibility of potential exploitation of the surrogate mother remains. Another important concern in terms of agreement and written consent is related to abortion, which arises if the surrogate mother raises doubts about the health of the fetus or finds herself or fetal health abnormalities. The bill states that if abortion is to be performed during a surrogate pregnancy, permission must be obtained from the appropriate authorities. Permission must be obtained from the authorities to terminate the pregnancy under the provisions of The Medical Termination of Pregnancy Act (MTP), 1971. Under the MTP Act, If something goes wrong during the pregnancy, the court will only accept the consent of the pregnant woman for the abortion. Interested couples are not allowed to participate in this decision.
The involvement of mediators during the surrogacy process results in surrogate mothers being cheated by paying less. Problems of lack of basic facilities like lack of post-natal medical facilities, lack of good health centers etc. have not been solved yet. The bill failed to extend the provision of insurance beyond the period of surrogacy and long-term medical problems after childbirth such as postpartum stress disorders and other physical and mental symptoms are excluded from the bill.Given the current situation, the physical, mental and financial rights of women who become surrogate mothers must be protected from any physical, emotional and financial consequences. Women working as surrogate mothers have the right to control health and reproduction, as well as to make appropriate decisions about autonomous reproduction and technical intervention. Removing the commercial aspects of the current surrogacy system does not eliminate the possibility of exploitation. Without the moral question of surrogacy, in fact, not even trying to solve such complex socio-physical and socio-mental problems, the bill could adversely affect the great practice of child adoption of childless couples in the future.
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