General Studies Paper 2 (Governance) (Social Justice)
Question:- 93. Surrogacy is becoming an increasingly common family-building option that offers a beacon of hope for people who are unable to carry a pregnancy on their own. What are the surrogacy laws in India? How far do you think the present laws do justice to the needs of society on one hand and personal rights on the other? Explain. Answer in 250 words.
Oct 17, 2022
Answer:-

INTRODUCTION:

Surrogacy is defined by law as “a practice whereby one woman bears and gives birth to a child for an intending couple” and intends to hand over the child to them after the birth, as per The Surrogacy (Regulation) Act, 2021 (SRA).

 

BODY PARAGRAPH-1

 

  • -The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child. Also, no monetary exchanges can be involved.
  • -The law further allows for surrogacy to be available only to infertile Indian married couples.
  • -The SRA Act says the surrogate should be married and have a child of her own.
  • -Restricting altruistic surrogacy to legally wedded infertile Indian couples, the Act sets an age limitation for the couple where a husband must be between 26 and 55 years of age and a wife between 23 and 50 years.
  • -Further, Indian couples with biological or adopted children are prohibited to undertake surrogacy, save for some exceptions such as mentally or physically challenged children, or those sufferings from a life-threatening disorder or fatal illness.

 

LINKAGE POINT:

Surrogacy is fraught with moral complexity. On the one hand, there are joyous parents who never thought they’d be able to have their own biological children and on the other hand there are personal rights of women and how we as a society view women. Hence, the following arguments can be raised in favour of personal rights:

 

BODY PARAGRAPH-2

  • -Banning commercial surrogacy denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
  • -The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work.
  • -The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
  • -In facilitating altruistic surrogacy among close kin, government has to be wary of the kind of exploitation which is fostering. For e.g. just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into, many a times, against the will of the surrogate to the complexity of kinship involved.

 

Some of the arguments from the broad societal point of view can be listed as follows:

 

BODY PARAGRAPH-3

  • -Altruistic surrogacy limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
  • -In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth.
  • -Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality.
  • -Moreover, infertility cannot be compulsory to undertake surrogacy. The certificate to prove infertility is a violation of privacy as part of the Right to Life under Article 21 of the Constitution.
  • -The punishment mentioned in the law can also be detrimental to surrogacy as a whole. The Act provides for 10 years of imprisonment and a fine of Rs 10 lakh for a medical practitioner for contravention of any provision of the Act. It is a very harsh provision. It will put off all doctors, and they will not undertake surrogacy procedures.

 

CONCLUSION:

India recently had a booming industry that attracted people from all over the world. Investigations revealed how some poor women acting as surrogates were housed in terrible conditions in communal accommodation, prevented from seeing their own children and not allowed to meet the families the babies were going to. And hence, the need of SRA,2021 was felt. India is one of relatively few countries where surrogacy is lawful. But we need to see it this way – surrogacy is permitted in India, not encouraged! Surrogacy indeed raises fraught ethical questions about how we reproduce and move ahead as a society.