A Surrogacy Regulation Bill was recently passed in the Lok Sabha; its main stipulation outlaws commercial surrogacy, the practice of paying a surrogate to carry one’s fetus to term. If passed in the Rajya Sabha and ratified by the President, the surrogacy bill will only allow for “altruistic” surrogacy — that is, convincing a “close relative” to be a surrogate out of the goodness of their heart, without any compensation outside of medical bills and health insurance. While the major critique of the bill is that it will rob women of a source of livelihood, it is also another attempt by the Government of India to dictate the definition of a legal family.
Under the surrogacy bill, only couples who have been legally married for five years, are childless, and who have a demonstrated history of infertility, can get an altruistic surrogate. This keeps out those who cannot legally marry in India yet, such as queer couples, which is in line with the Indian Government’s history of denying queer folk their rights. In 2012, the government passed a visa policy banning gay foreigners and single people from hiring a surrogate from India; only a man and a woman married for more than two years could do it, Times of India reported.
For Indian citizens, things are no different. The Government has not done much for queer Indians beyond decriminalizing gay sex by scrapping Section 377 in 2018. Queer people are not accorded the same rights that heterosexual Indians enjoy — such as the right to marry or the right to adopt a baby. Now, queer folks, single or otherwise, won’t be able to enlist the help of a surrogate to bring a child into their home.
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This surrogacy bill also keeps out other people who could be infertile and need a surrogate to carry a baby to term — single folks, live-in couples, divorcées, widows/widowers, heterosexual couples who have been married for fewer than five years, and people outside the age group of 23-50 for women and 26-55 for men. GOI’s sponsorship of the surrogacy bill seeks to disregard the alternative, non-traditional ways in which Indian society has gradually defined the term ‘family.’ By dictating who gets to have a child on the basis of sexuality, marital status and age, GOI is attempting to bring Indians back to ‘traditional’ family values that are oppressive, exclusive and discriminatory.
The bill has been furthered in Parliament with almost unanimous support because it claims to tackle unethical practices that have plagued the practice of commercial surrogacy, such as exploitation of surrogates, import of human embryos, abandonment of children born of surrogate mothers, and a lack of regulation of Assisted Reproduction Technology (ART clinics) where commercial surrogacy takes place. There is, however, before Parliament an ART bill, which seeks to regulate the IVF industry by imposing regulations on the process of choosing egg/sperm donors and surrogates, testing them for diseases, informing participants of procedural risks, remunerating them fairly, and which lawmakers have ignored.
The surrogacy bill, which purports to stop exploitation of women, also imposes strict restrictions on who can become a surrogate: only a close relative of the married couple, who is an “an ever-married woman having a child of her own and between the age of 25-35 years” can be asked to be an altruistic surrogate. Critics have argued in-family persuasion of female relatives to become surrogates can also lead to exploitation that cannot be regulated by law.
In the GoI’s denial of unconventional family structures, and in its disregard of the possibility of exploitation of women within a ‘traditional’ family, there lurks a deeper intent than the government’s desire to regulate the surrogate industry: it’s to accord the privilege of starting a family with children only to straight, two-parent households.
