One step forward or one step back? Autonomy, agency and surrogates in the Indian Surrogacy (Regulation) Bill 2019

Abstract

The Indian government has recently introduced legislation to regulate ‘altruistic’ surrogacy while banning ‘commercial’ surrogacy amidst the criticism that India has become the ‘baby factory’. In the past decade, academic discourse has raised socioethical and legal issues that surfaced in the unrestricted transnational commercial-surrogacy industry. Most of the literature and ethnographic studies centred on the issues of informed consent, autonomy, decision-making and exploitation. With the proposed legislation, the Indian government has shown its will to regulate surrogacy, including the medical intermediaries as well as the contract between the intending parents and the surrogate mother-to-be. The present paper addresses the legal and socioethical context in which India introduced the Surrogacy (Regulation) Bill 2019. It examines the extent to which the proposed law responds to the legal challenges and socioethical concerns that surfaced in the course of unregulated transnational commercial-surrogacy arrangements in India. It argues that, even though the proposed legislation addresses and responds to some of the legal and ethical concerns such as informed consent and legal parentage, it stops short of ensuring the welfare and well-being of the surrogate. Second, the legal certainty of parentage and the child's rights comes at the cost of the physical and psychological well-being of the surrogate. Finally, it argues that, by presupposing the surrogate as an autonomous agent and yet imposing the requirement of marriage, the Bill overlooks the sociocultural realities of patriarchal hierarchies entrenched in Indian society – that, in its conception of ‘family’, the focus on the ‘traditional’ family not only presents a narrow view of the heteronormative family and perpetuates the patriarchal notions of gender roles, but also fails to take into consideration maternal pluralism in surrogacy arrangements, undermines the modern family and, above all, discriminates against the single person's and lesbian, gay, bisexual, transgender, and queer (LGBTQ) communities’ right to found a family. Since many countries that served as centres for international commercial-surrogacy arrangement (such as Cambodia, Thailand and Nepal) have recently started to take steps to prohibit or limit transnational surrogacy arrangements, the analysis of Indian law in the present paper will provide a useful context within which these countries can effectively regulate surrogacy while safeguarding the surrogate's rights and interests.