Decoding the bill on surrogacy

A heartwarming story came out of the Berlin Zoo recently. A pair of male king penguins, Skip and Ping, had adopted an egg and were busy hatching it. Skip and Ping are a couple, and earlier, too, they had shown their obvious desire to start a family by nurturing objects like a rock or a fish. Seeing their eagerness to become parents, the zoo authorities gave them an egg laid by a female penguin. Since then, one of them has been incubating it by covering it with his stomach. It is not known if the egg is a fertilised one, but if it is, the two gay penguins could soon become the proud parents of a little penguin chick.

Skip and Ping’s push for parenthood has charmed Germany and the world. It’s high on cute factor, of course, but it is also an affirmation of how universal the parental instinct is. Straight or gay, feathered or fanged, two-legged or four, the desire to rear a child is a natural and powerful urge.

Viewed in this context, India’s Surrogacy Regulation Bill, re-introduced in Parliament last month, seems to have some unfair, exclusionary provisions. Its biggest feature is that it bans commercial surrogacy. In other words, once the law is passed, it will be illegal to pay a woman to use her womb to produce the biological child of another woman or man. You could, however, opt for altruistic surrogacy, one in which no money changes hands, provided you are an Indian heterosexual couple who have been married for five years and at least one of you is certified as infertile. Which means, the bill bars singles and LGBT couples from exercising even the somewhat nebulous option of “altruistic” surrogacy.

There are compelling arguments on both sides of the debate on banning commercial surrogacy. And it is true that the practice is illegal in many countries for the complex social, ethical and legal issues that it often throws up. India has so far had a booming surrogate baby-making industry, one which has thrived on legions of poor women willing to hire out their wombs to rich infertile couples. A 2012 study by the Confederation of Indian Industries (CII) pegged the surrogacy market’s size at a staggering $2 billion. That figure could only have swelled further.

Photo: Shutterstock

Yet the industry has always been a hive of very conflicting stories: On the one hand, there are the voices of disadvantaged women who welcome the chance to earn a tidy sum (anything between Rs 10 lakh and Rs 15 lakh) by carrying another person’s child; and on the other, there are the darker tales of exploitation, of unscrupulous reproductive clinics that profit at the expense of powerless women who find themselves cheated, their health degraded, because they agreed to serve as surrogates.

There are no easy answers to whether outlawing commercial surrogacy is right or wrong in a country like India, where many impoverished women see it as a way to fulfil a financial goal. It is also moot whether “altruistic” surrogacy will be the norm in the future, or whether it will become a crafty window dressing for continued transactions in the country’s vast rent-a-womb industry. 

However, to the extent that the Surrogacy Regulatory Bill, 2019, allows altruistic surrogacy, isn’t it grossly unjust to restrict the facility to only heterosexual couples? If LGBT people enjoy equality before the law, as was affirmed by the Supreme Court last year when it decriminalised gay sex, isn’t this bill a flagrant violation of their fundamental right? Similarly, not allowing LGBT couples to adopt (singles are allowed) is an assault on their human rights.

The Surrogacy Regulation Bill seems to be pushing the idea that only one kind of family is legitimate — that which is helmed by a male husband and his female wife. It couldn’t be more wrong. Today, the idea of the family is so much more fluid than the normative one. It embraces all sorts of permutations and combinations — same-sex, singles, multi-racial… The government needs to recognise this. If surrogacy as a route to parenthood is allowed, it must be extended equally to all citizens.

If Skip and Ping could understand this strange Indian law in-the-making, they wouldn’t be pleased.

Shuma Raha is a journalist and author based in Delhi @ShumaRaha