The Artificial Reproductive Technology act was passed by the Indian Parliament in December 2021. It effectively banned commercial surrogacy and promote altruistic surrogacy. The act defines altruistic surrogacy as a process where the intending couple doesn’t pay for anything apart from the surrogate’s expenses and her insurance.
As per the law, an intending couple is defined as – a married, heterosexual, infertile couple of 5 years (the husband is to be between 26 to 55 years of age, and the wife between 23 to 50) with no prior children.
“The surrogacy bill as it now stands needs to be repealed. I’m not saying that it should not be regulated, but in its current form the bill does nothing more than impose a Victorian morality on the people by excluding not only queer folks but also single parents. By removing the commercial component, the exploitation won’t stop. Rather the risk of exploitation will increase. When a bill that is supposed to protect reproductive liberty and autonomy does everything but that, including criminalising it” says Rohin Bhatt, a queer rights activist and a legal bioethics scholar at Harvard.
The bill also has several arbitrary tests for infertility and necessary certifications that are at odds with the WHO definition of infertility.
This definition not just leaves out the queer community and limits the possibility of couples from conceiving, but also works on a bigoted assumption that exploitation of reproductive labour through commercial surrogacy is a practice limited to only queer people and single parents.
Operating on such an assumption is not only exclusionary in nature but also prevents the law from providing protection to surrogates from exploitation they may face. It also sets dangerous precedents for different laws regarding adoption.
There has been a long history of governments trying to bar queer couples from surrogacy. Russia, Nigeria are amongst some countries that not only banned surrogacy for same sex couples but also banned foreign same sex couples from adopting from their countries.
Apart from this, the bill also increases the danger of underground surrogacy clinics popping up by criminalising commercial surrogacy. As has been observed in countries worldwide, banning surrogacy has never led to a decline in exploitation, but has actually increased surrogate deaths by creating a huge underground, unregulated market instead. Viewing surrogacy as altruistic instead of as reproductive labour is also short-sighted and displays a clear lack of understanding of it on the government’s part.
The surrogacy bill seems to be yet another puritanical and moralistic bill that uses social good as a shield to cover its more insidious agenda.
