Misbah Haqani, Sama Resource Group for Women and Health
The Union of India codified the regulation of the Assisted Reproductive Technology (henceforth ART) and Surrogacy in the country in the form of the Assisted Reproductive Technologies (Regulation) Act and the Surrogacy (Regulation) Act, both of which were passed in the December of 2021. The legal journey of regulating the ARTs and Surrogacy started in early 2000s in India, in the form of National Guidelines by the Ministry of Health and Family Welfare (Henceforth MoHFW), initial drafts of the ART and Surrogacy Regulation Bills and multiple amendments in the bills over the years. These earlier regulations have also included the banning of commercial surrogacy, transnational surrogacy arrangements, delineating the eligibility criteria for being a surrogate and to be a commissioning couple/party. These have also been regularly interrupted by interventions from the civil society groups, reproductive justice activists, queer rights groups, and feminist groups who continue to raise concern with the nature of the regulations; mired within the larger socio-political and economic environment in the country, the ART and the Surrogacy regulations have thus been a continuous site of intense political, social, and economic contestations.
An overview of the Acts
The ART and Surrogacy Regulation Acts aim to provide a legal framework to ensure the ethical and safe use of assisted reproductive technology practices such as in-vitro fertilization (IVF), surrogacy, and egg and sperm donation. The Surrogacy Act 2021 permits only altruistic surrogacy and prohibits commercial surrogacy, which means that surrogates cannot receive any financial compensation except for medical and insurance coverage. The act also sets out specific criteria for intended parents and surrogates, as well as the circumstances under which surrogacy is allowed, and establishes a regulatory framework for governing surrogacy clinics. Meanwhile, the Assisted Reproductive Technology Act governs assisted reproduction clinics and banks by creating a national registry to oversee their operation, specifying the conditions for gamete donation, including criteria for donors, and the terms for providing ART services. The ART (Regulation) Act establishes a National Board and State Boards to oversee and regulate the assisted reproductive technology services in India. The Act also provides guidelines for the registration and accreditation of assisted reproductive technology clinics and banks, and sets out the rights and responsibilities of the parties involved in the process, such as the intending couple, the surrogate mother, the sperm or egg donor, the doctors, embryologists and other service providers. Since their passing, a number of Public Interest Litigations have been filed in the Supreme Court of India and some state high courts, opposing various provisions of the two Acts, their practicality and applicability and even as much as their constitutionality.1Some of these PILs can be accessed here: https://www.barandbench.com/search?q=surrogacy%20and%20ART Adding on this work, in this article, I will bring together two arguments that emerge from these regulations.
Tracing the Other of the ART and Surrogacy Regulation
Both the ART (Regulation) and Surrogacy (Regulation) Acts have delineated eligibility criteria for people who can avail ARTs, including Surrogacy, these include age, nationality, citizenship, marital status, gender and implicitly sexuality. For example, a woman must be married, below the age of 50, and have no living child from the current marriage to be eligible for accessing ART. Primarily, the Act precludes unmarried men, divorced men, widowed men, single women, unmarried heterosexual couples living together, transgender individuals, and homosexual couples (whether married or living together) from accessing ART services. This exclusion is noteworthy since the Surrogacy Act also excludes the aforementioned persons from utilizing surrogacy as a reproductive method. Furthermore, the Acts’ scope is confined to infertile commissioning couples – individuals who have been unable to conceive after one year of unprotected sexual intercourse. Consequently, its application is limited, and it significantly curtails the reproductive options available to those excluded. In relation to their stated objectives, the eligibility criteria laid down within the Acts betray implicit contradictions and a certain desire of the state to manage certain bodies, their sexualities, and reveal the anxieties around non-binary gender expressions, and normative family formations. The Acts’ attempt to regulate surrogacy by restricting its availability to a specific group of commissioning parents does not appear to enhance its regulation. Specifically, limiting surrogacy to heterosexual married couples fails to demonstrate any advantages over its availability to single men and women, cohabiting couples, and same-sex couples, and is morally loaded in considering heterosexual married couples to be inherently capable of being parents and the inference of all others lacking this capacity (see also Banerjee S and Kotiswaran P 2020).2Sneha Banerjee & Prabha Kotiswaran (2021) Divine labours, devalued work: the continuing saga of India’s surrogacy regulation, Indian Law Review, 5:1, 85-105
Furthermore, in relation to the reading down of section 377, in the landmark judgement in Navtej Singh v Union of India, that decriminalised consensual sexual activity between adults of the same sex, the ART and Surrogacy regulations are a step backward. Justice Dhananjaya Chandrachud had observed in this case that “the constitutional principles which have led to the decriminalisation must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfilment in every facet of life. The law cannot discriminate against same sex relationships. It must take positive steps to achieve equal protection.” The ART (regulation) and Surrogacy (regulation) Acts, therefore, are acting in contradiction to this judgement and practically an impediment to the fulfilment of equal rights of members of the LGBTQI community by excluding them from availing assistance in reproduction.
The reproductive governance through legislation includes, here, setting out normative eligibility criteria by the Indian state for assisted reproduction. This governance implies certain norms and expectations regarding the ideal maternal and paternal figures. These norms encompass political, economic, familial, gender, moral, and health-related factors that determine whether a person is deemed fit to receive assistance in becoming a parent, or simply being a parent. The ideal subjects are ones that embody and reproduce state-supported priorities in their value, conduct, and comportment. The bodies that do not conform to the state’s desire are left out, albeit present by this very omission, and become the other against which the desired body is juxtaposed.
The willing altruistic surrogate: Labour, Motherhood and Surrogacy
The Surrogacy (Regulation) Act describes a surrogate mother as: a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from implantation of embryo in her womb.. (Section 2 I (zg)) (emphasis mine). The Act mandates that a woman must be willing to be a surrogate (4 b II) and must be in possession of an eligibility certificate provided by appropriate authority. In section 6 of the Act, the provisions for an informed consent are laid down, wherein a woman gives her written informed consent to undergo such procedures, after the side effects and after effects have been explained to her. The surrogate mother is also given the option of withdrawing her consent for surrogacy, before the implantation of the human embryo in her womb (emphasis mine). The Act bans all forms of commercial surrogacy, including advertisements of commercial surrogacy, and allows only altruistic, gestational surrogacy. The willing altruistic surrogate is given the basic protection of a medical insurance cover for 36 months covering postpartum delivery complications (section 4 III). Section 2(b) of the Act explains: altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.
The predecessor of the Surrogacy regulation Act of 2021, the Draft Surrogacy Bill of 2019, was examined by a Rajya Sabha Select Committee as well as a Parliamentary Standing Committee, although the recommendations of the latter are not reflected in the Act of 2021. Here I draw two excerpts from the respective recommendations of the two committees:
“The Committee is of the view that medical expenses incurred on surrogate mother and the insurance coverage for the surrogate mother are not the only expenses incurred during the surrogacy pregnancy. For any woman who is going through surrogacy, there is a certain cost and certain loss of health involved. Not only will she be absent from her work, but will also be away from her husband and would not be able to look after her own children. The Committee, therefore, recommends that surrogate mother should be adequately and reasonably compensated. The quantum of compensation should be fixed keeping in mind the surrogacy procedures and other necessary expenses related to and arising out of surrogacy process. The compensation should be commensurate with the lost wages for the duration of pregnancy, medical screening and psychological counselling of surrogate; child care support or psychological counselling for surrogate mother’s own child/children, dietary supplements and medication, maternity clothing and post-delivery care.” (PSC)
“Compensatory surrogacy gives rise to some of the teasing questions:- whether there could be or should be any compensation for the noble act of motherhood; how much compensation could be treated as condign (sic) for a woman who agrees to rent her womb; whether any standard price or cost for this noble act of motherhood could be fixed, whether renting out of her womb by a woman for some material consideration could be considered as an ethical practice and the woman would get the same respect as other women and mothers get in the society. The appropriate and judicious response to all these questions appears to be in the negative and it is in this background that the most acceptable option for surrogacy is the altruistic one . . . At the heart of the altruistic surrogacy lies the fact that it is bereft of any commercial consideration, it is a social and noble act of highest level. The surrogate mother . . . wilfully and voluntarily resolves to do something worthwhile for the society and she, instead of being considered as getting involved in an immoral and unethical practice, sets an example of being a model woman in the society indulging in altruistic and selfless service as other normal mothers do . . . ” (RSC)
The PSC identifies the labour implicit in surrogacy, and in retrospect that of motherhood, and recommends a compensatory model of regulations, acknowledging that the expenses involved in surrogacy go way beyond medical expenses. The RSC recommendations on the other hand are bereft of any scientific rationale and rather takes a moralistic stand (see also Banerjee S and Kotiswaran P 2020). A juxtaposition of these recommendations in light of the final Act allows us to tackle the troupe of the age-old juxtaposing of greedy commercial surrogacy and noble gift giving altruistic surrogacy. More importantly, it allows us to access a preliminary question, that lies at the heart of any discussion of the surrogacy regulations and which has been the subject of the reproductive justice movements for decades, which is this one: Is reproductive labour considered labour after all? There are references in the RSC recommendations to the noble act of motherhood of highest level and strong case against a cost for this noble act of motherhood, vis a vis surrogacy: the possibility of these arguments is made plausible precisely because the work of pregnancy and motherhood is not valued as work. In other words, compensatory surrogacy is conceived as immoral and unethical, hence unnatural, precisely because motherhood is not considered work, and the idea of being paid for pregnancy and birthing are thus outside of the limits of this reasoning. Considering reproductive work as labour allows us to draw the actual contours of exploitation in the fertility industry, in the absence of which, rather than drawing up regulations that would speak to that exploitation and its redressal, the simple answer seems to be a ban. This is not to claim that the fertility industry is not exploitative, but to draw attention to the appropriation of the exploitation argument to further paternalistically and patriarchally normalised devalued notions of motherhood and hence surrogacy. Vertommen S & Barbagallo C (2021)3Sigrid Vertommen & Camille Barbagallo (2021): The in/visible wombs of the market: the dialectics of waged and unwaged reproductive labour in the global surrogacy industry, Review of International
Political Economy employ a feminist political economy analysis during their interviews with surrogates from Georgia and Israel, to address the “dialectical relation of the labour of commercial surrogacy and that of unwaged motherhood…. in an attempt to make sense of the moral outrage, calls for rescue-interventions and criminalisation that occur when women transgress the boundaries of motherhood and use their (reproductive) bodies to make a living” (Vertommen and Barbagallo, 2021, pp: 2). Within the altruistic surrogacy arrangements in India, post and prior the legal regime of the Act, it is this particular transgression that the regulations are in conflict with and a certain tension is arising at the site where the recognition of and compensation for reproductive labour is sought. Although a value is attached to the informed consent and willingness of the surrogate, however, there is a lack of a critical and historical approach to consent and willingness which would place these within the material realities of women in India, of the neoliberal economies and structural problems such as lack of jobs and employment options, underpaid jobs, inadequate or absent public health insurance, poverty and so on.
The new regime of reproductive governance forged especially after the passing of the Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act, 2021, have brought back some of the long standing debates centring around the reproductive justice. The questions of the pushing certain bodies even more closer to a fringe reverberate in the recent critiques of the two regulations. In this piece, I have attempted to tease at two aspects that are central to such a critique and that cannot be repeated enough. The need of re-examining the regulations and strengthening cross movement solidarity is paramount to move towards the ensuring of a reproductive justice in its holistic form with considerations for the rights of all individuals irrespective of any socio-political indicators.
Post date 27/03/2023