Legal regulation on surrogacy and reaffirming motherhood: Conflicts and Contradictions
October 21, 2009
By Rukmini Sen. Columnist, Sanhati
There has been a recent proposition to legalize and regulate surrogacy in India. According to the Black’s Law Dictionary, surrogacy means the process of carrying and delivering a child for another person. The New Encyclopaedia Britannica defines ‘surrogate motherhood’ as the practice in which a woman bears a child for a couple unable to produce children in the usual way. The Report of the Committee of Inquiry into Human Fertilization and Embryology or the Warnock Report (1984) defines surrogacy as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth.
The government in its 228th Law Commission report is giving an interesting reason as to why surrogacy laws need to be in place. One can see how the logic is shaped by the glorification of motherhood, being made to be constructed as associated with complete Indian womanhood.
The growth in the ART (Assisted Reproductive Technology - Ed.) methods is recognition of the fact that infertility as a medical condition is a huge impediment in the overall wellbeing of couples and cannot be overlooked especially in a patriarchal society like India. A woman is respected as a wife only if she is mother of a child, so that her husband’s masculinity and sexual potency is proved and the lineage continues. Some authors put it as follows: The parents construct the child biologically, while the child constructs the parents socially. The problem however arises when the parents are unable to construct the child through the conventional biological means. Infertility is seen as a major problem as kinship and family ties are dependent on progeny.
The above quote reinforces that if women do not bear children then their husbands’ sexual potency is at stake. Thus, in order for an Indian family to get legitimacy and acceptance in society, the presence of a child is essential. The Indian government’s sudden suggestion to have a law regulating surrogacy has two main reasons:
* The growing surrogacy market, recognizing that Anand in Gujarat has been established as a commercial capital of surrogacy in India. According to the Law Commission Report, ART industry is now a 25,000 crore rupee pot of gold. Anand, a small town in Gujarat, has acquired a distinct reputation as a place for outsourcing commercial surrogacy. It seems that wombs in India are on rent which translates into babies for foreigners and dollars for Indian surrogate mothers.
* To protect the conventional family structure in India—a heterosexual married couple with a child/children
However, the definition of “couple” according to the proposed bill is, persons living together and having a sexual relationship that is legal in the country / countries of which they are citizens or they are living in. Marriage is not a pre-requisite to being considered a couple. In fact, heterosexuality is also not a given according to this definition. Moreover, since the bill proposes a definition of ‘unmarried couple’ meaning a man and a woman, both of marriageable age, living together with mutual consent but without getting married, it gives legal recognition to live-in relationships and subsequent status of parenthood through surrogate help. The law therefore is a reflection of tradition-modernity continuum like various cultural issues in India. On the one hand surrogacy is accepted to give legitimacy to masculinity in Indian patriarchy and on the other hand the same male-centred law provides scope for unmarried couples to have children through surrogacy. This dichotomy represents the innate binary positions that run through most laws in India—balancing commercialization with the function of motherhood.
There are certain rights that a child has according to the proposed bill keeping the best interest of the child philosophy in mind. However that is restricted to the question of legitimacy only:
(1) A child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercourse.
(2) A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.
(3) In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.
(4) In case a married or unmarried couple separates or gets divorced, as the case may be, after both parties consented to the assisted reproductive technology treatment but before the child is born, the child shall be the legitimate child of the couple.
The major concern as reflected above is that of legitimacy and it is reasonably so since society is new to the idea of children within wedlock but not as a result of biological reproduction. Adoption has never really been popular in India. In fact with the legalization and regulation of surrogacy probably would become more acceptable than adoption primarily because there could be an indirect link established with biological parentage, rather than adopting a complete stranger’s kid. Given that there are various complications of having a uniform adoption law in India since it comes within the personal law ambit, yet there have not been such proactive efforts taken by the Indian government is discussing adoption more openly at least at the policy making level. The Juvenile Justice Act, 2000 has a mention of adoption and it is presently the only Indian law through which couples from any community can adopt.
Another set of complications that legitimately shall arise in case of surrogacy is the conflict between the surrogate mother and the genetic parents. This may lead to divided interests, the usual probability of developing a ‘motherly’ instinct for the child and claiming certain rights, etc. The bill proposes that a surrogate mother shall relinquish all parental rights over the child. The signing of a contract legally makes it possible to avoid these complicacies, however does not eliminate it completely because it is difficult to legally regulate human emotions. The bill proposes an age limit for a woman to be a surrogate mother, which takes into account the medically understood most fertile period of a woman, and also the minimum age limit of a girl in India. The law proposes that no woman less than twenty one years of age and over forty five years of age shall be eligible to act as a surrogate mother.
What is exceedingly interesting is the definition of infertility–the inability to conceive after at least one year of unprotected coitus. This reinforces definitely one myth that married couple usually desire to have children ‘soon’ after marriage. It has to be remembered here that this bill does talk about both married couples, unmarried but living together partners and single individuals.
A detailed assessment of the bill will definitely bring to light many more areas of contradictions. These are just a few examples. It seems that the bill has been proposed in a lot of haste, it assumes certain social trends have been accepted in India and strengthens certain traditionally held notions which have been systematically critiqued by feminists in India. Thus if at all we need a legal regulation, it needs to be much more well thought out, with more dialogue between the stake holders. This still seems to be the brain child of Indian Council for Medical Research.
Reference:
Government of India Law Commission of India, Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy report no. 228, August 2009 available online at
The Assistive Reproductive Technology (Regulation) Bill, 2008 available online at http://lawandotherthings.blogspot.com/2008/10/draft-art-bill-2008.html
December 21st, 2009 at 8:57 am
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