Issues in Altruistic Surrogacy Arrangement

What is the issue?

• Lok Sabha has approved the Surrogacy (Regulation) Bill. Click here to know more.
• The contracts a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless.

What is Surrogacy (Regulation) bill?

• Surrogacy is the practice where a woman agrees to give birth to a baby (usually by artificial insemination or surgical implantation) on behalf of another couple.
• Surrogacy (Regulation) Bill seeks to put an end to commercial surrogacy - payment to a surrogate mother is punishable by up to 5 years imprisonment.
• The Bill allows only altruistic surrogacy (by relatives) for married couples.
• It allows surrogacy to intending infertile Indian married couples between the ages of 23-50 (female) and 26-55 (male).
• It limits the option to only legally married childless couples who have been trying for a child for at least 5 years.
• The commissioning couple cannot have a surviving child, either biological or adopted.
• But this is except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
• The Bill also has safeguards built in against sex selection of the baby and also requires all surrogacy clinics to be registered.
• Clinics can charge for these services but the surrogate mother cannot be paid.
• The national and state surrogacy boards will be the regulating authorities.

What is the significance of altruistic surrogacy across globe?

• In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
• The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilization (IVF) but may include other ‘expenses’.
• In most of Australia, altruistic surrogacy entails restricted — in different parts of the world, varying levels of legal restrictions, or complete bans are practiced — pre-approved payments to the surrogate, including for diet during the pregnancy, and/or for the medical treatment.
• However, altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
• In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.

What is the emphasis of altruistic surrogacy in India?

• As per the new Surrogacy Bill, the surrogate in India continues to fulfil her role as a gestate.
• In keeping with the insistence on gestational surrogacy, which makes the use of IVF and other assisted reproductive technologies mandatory.
• The current Bill is faithful to the Indian Council of Medical Research’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
• The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
• Motherhood did not belong to the surrogate; she was trained to think of herself as a gestate, and the relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.
• The commercial surrogacy arrangement in India was an exchange of money for services: and yet, clinics and surrogacy agents went to great lengths to transform the commercial element of the surrogacy arrangement, primarily identified as the surrogate’s fees, into gift-giving, and sacrifice. That motherhood could be for sale is a matter of distress and shock.

What are the issues with the bill?

• In India altruistic surrogacy is not very different from its opposite commercial variant.
• Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
• Here, kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
• Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.
• But unlike the Surrogacy Bill, the Transplant of Human Organs Act identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.
• It’s a closed group of relatives within the structure of the nuclear family unit members who may not be eligible to be surrogates, unfortunately.
• By banning commercial surrogacy in favor of its altruistic avatar, the identification of ‘close relatives’ will take on a cloudy turn.

What are the challenges in taking up altruistic surrogacy?

•  In India just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
• In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
• In facilitating altruistic surrogacy among close kin, government has to be wary of the kind of exploitation which is fostering.
• Despite exempting gay couples, single men and women, and live-in couples from seeking surrogacy, the bill fails to define the regulative mechanisms within altruistic surrogacy.
• With very regressive approval for couples with differently-abled children to opt for surrogacy, the Bill does seek certain important changes.
• The popularity of IVF and other assisted reproductive technologies stems from a problematic conceptualization of infertility itself, pushing couples to opt for invasive intervention within a year of unprotected coitus.

Source: The Hindu