All that is wrong with the new surrogacy bill

As a mother, as a woman, as a human being, Savera R Someshwar/Rediff.com is horrified by some of the provisions of the Surrogacy Regulation Bill, 2016.

And, I read it again.

And, I rubbed my eyes. Again.

Before reading it one more time.

What I was reading, to put it mildly, left me horrified. As a mother. As a woman. As a human being. As a citizen living in what we proudly proclaim is the ‘largest democracy in the world’.

Maybe, the reportage was wrong. Exaggerated. So I hunted for the video.

India’s honourable minister for external affairs, Sushma Swaraj, had actually said all the things I had read as she was explaining the draft of the Surrogacy Regulation Bill, 2016 that has been approved by the Union Cabinet.

The Bill allows ‘altruistic surrogacy’ for a limited section of society. The others, Swaraj said genially, were most welcome to adopt. And why couldn’t they avail of surrogacy? We’ll come to that in a bit.

Some of her views, as expressed in the press conference on Wednesday, were clearly representative of the present Indian’s government’s regressive views.

She began, very kindly, by explaining how surrogacy would now be restricted in India to ‘childless couples, who are medically unfit to have children’. They could, she went on, because clearly it was a tragedy for them, to ‘take help from a close relative’ in a process that she called ‘altruistic surrogacy’.

But what, for example, if you didn’t have ‘close’ relatives who were willing to help?

Maybe, like a reporter pointed out in the press conference, you were two orphans who had chosen to get married to each other and later discovered that one or both of you were ‘medically unfit’ to have children.

Maybe, you married against your family’s wishes.

Maybe, you come from a small family and there are no women who qualify as a surrogate mother, either due to age or due to their physical ability to carry an embryo to term. Or maybe, since the bill demands that a surrogate mother has to be married and have a child, they don’t fulfil those requirements.

Maybe -- and I am sure that Swaraj, as a mother herself, understands the emotional bonding a pregnant woman feels with the baby she is carrying; even if it is someone else’s embryo -- a potential surrogate, closely related to the childless couple and sympathetic to their sorrow, may not be sure that she could cut off the emotional cord as easily as the placenta is snipped off at birth.

Let’s take another look at the ‘close’ relatives suggested by the honourable minister. Ms Swaraj, do you know how women are treated in our country? Will the bhabhi have a choice? What if she does not want to do this?

Will the sister’s husband and in-laws allow her to be a surrogate mother even if she wants to?

Let’s move on to another aspect: Pregnancy. As Swaraj surely knows, this comes with its own complications, right from everyday stuff like nausea, swollen feet to stretch marks, genetic diabetes to having a breech baby to babies dying in the womb to genetically deformed babies. Even if all goes well, there could be problems during delivery. The cord could be wrapped around the baby's neck, the baby could swallow meconium...

But the government is not concerned with all of this. The Bill, among other reasons, is being proposed to prevent the abandonment of the girl child and babies who are challenged, either physically or mentally or both.

If the foetus is discovered to have a problem, what happens if the surrogate mother decides she does not want an abortion for religious or emotional reasons? Will the parents, who are compelled by law to ‘not abandon the child, born out of a surrogacy procedure, under any circumstances’, find themselves capable of taking care of the child?

What if the surrogacy results in a girl child and the adoptive parents want an abortion? Will, given the circumstances in India, the surrogate mother have a choice?

What if the embryo implant results in twins? Or triplets? And this makes the pregnancy risky for the surrogate mother? What if the surrogate mother is advised bed rest for the duration of the pregnancy?

The surrogate mother, according to the bill, has to be a married woman with at least one child because it indicates that she is able to carry a child to term. In the scenarios listed above, what happens to her responsibilities towards her own family? What if she decides, at that stage, that the surrogacy is demanding too much of her?

If help is hired for her in such situations, who pays for it? The surrogate mother/family or the couple who want the baby who, according to the proposed bill, can only pay for medical care?

What about post-natal care? To what extent is the couple who want the baby responsible for it? What if the surrogate mother slips into post-natal depression and needs long term care? Who will take the responsibility?

And then, there are family dynamics and politics -- as well as society’s unfeeling comments -- to be taken into account.

What if relations between the surrogate mother/her family and the couple who want a baby/their family break down irretrievably? Ms Swaraj, I am sure you are aware this irreversible breakdown of relations happens in families. What then?

According to the legal contract that is to be drawn between the would-be parents and the surrogate mother, the child belongs to the parents. But have you thought of the emotional state of the surrogate mother during this time? And what if she had donated her own egg for the surrogacy? Wouldn’t the bond be even more strong and, under the circumstances, even more painful?

The bill also says that a woman can give birth to a surrogate child just once. But what if she’s been forced to abort an earlier surrogate foetus, once or multiple times? What if he had been unable to carry a foetus to term? Will she be forced to become a surrogate again and again until a baby is delivered?

Each pregnancy, whether it results in a delivery or not, takes a physical and emotional toll on the mother.

So, what about the rights of the surrogate mother?

Swaraj is sure those rights can’t be toyed with. After all, according to her, there is so way this industry can go underground. It will always be supervised. “After all, the clinics are there. They are attached to the hotels (she means the apartments where the surrogates live). The mothers will be there, lying down for nine months,” she explained. “Everything is right there. So what can prevent the law from being implemented?”

But you are talking about commercial surrogates, Ms Swaraj. Why would an altruistic surrogate not stay in her own home? Why would she opt for a commercial establishment rented by a clinic? And, in that case, how would any kind of legal infringement be supervised…?

As we leave Swaraj to ponder over how the bill is protecting the surrogate mother, let’s move on to some of the other things the bill says.

If, for whatever reason you cannot have your own child biologically, there are some more terms and conditions. Here’s one: you have to be legally married for five years.

So, if you’re married but haven’t crossed that five-year landmark decided by the government, hard luck.

If you’ve married late and want to start a family immediately, hard luck.

If you are a live-in couple, hard luck.

If you are an unmarried man or woman, hard luck.

If you are divorced, hard luck.

If you are separated, hard luck.

If you have lost your husband/wife to death, hard luck.

If you are a homosexual, hard luck.

If you are a lesbian, hard luck.

If you have a biological child and want one more, hard luck.

If you have adopted a child and want a biological one now, hard luck.

If you are poor, and cannot afford the cost of surrogacy, hard luck.

If you were born in India but now live abroad, or a now a citizen of a different country, hard luck. You can’t ask your sister, or your bhabhi to help.

If you are a divorcee parent who has married a second time -- which means you have a child from your earlier marriage -- and wants to have a child but can’t, the outline of the bill, as presented by Sushma Swaraj, offers no clarity.

In order to make that absolutely clear, let me quote Swaraj, ‘Kaanooni roop se male and female legally wedded couples ko hi yeh anumati di jayegi (Only those men and women who are legally wed to each other will be given permission for surrogacy).’

Which basically means the government has disqualified most of us from opting for ‘altruistic surrogacy’. It has decided to intervene in your private life, asked your sister or your husband’s bhabhi or the mother of either parent, if they are within the age limit defined by the bill -- if one goes by whom Swaraj has qualified as a close relative -- to be a surrogate mother for you, take control of what should have been a personal decision, limited your freedom of choice and basically said, ‘We’ll decide if you can have a child; otherwise, of course, you are free to adopt.’

But is adoption the solution? There are thousands of children, innocent mites, who need a home, but Swaraj, Narendra Modi and the Government of India need to understand that adoption is a personal choice. Not everyone is qualified emotionally to be an adoptive parent and those who do so without being emotionally ready are doing the child a great disservice. And, in India, it’s not just the parents who adopt a child; the family has to have a welcoming heart as well.

Oh, and here’s the reason why live-in and homosexual couples cannot opt for surrogacy. “We don’t recognise homosexuality and live-in relationships. It is against our ethos.”

Whose ethos, Ms Swaraj? And who is this ‘our’ that you are talking about?

And since you’ve decided that you, by which I presume you mean the Government of India, do not recognise live-in relationships, does it mean the Supreme Court judgment last year that an unmarried couple who cohabited continuously as man and life for a long time would be considered to be in a relationship akin to marriage as far as the law is concerned… is illegal?

As for those who fit within the Indian government’s carefully defined outline, you can’t opt for altruistic surrogacy if you have a biological or adopted child, unless your ‘child is mentally or physically challenged or suffers from a life-threatening disorder or fatal illness’.

‘This,’ as Swaraj explains, ‘has been decided so that there's no discrimination between the two children. You may not differentiate between when it comes to food and the way you bring them up, but the discrimination will definitely come in when it comes to property.'

Oh, so siblings don’t scrap about property? They don’t go to court against each other over money-related matters? Really? Is that how it happens? I didn’t know!

And obviously, our adoption agencies are doing a terrible job, handing over kids to all and sundry (actually, that isn’t true… I have had friends and family go through the process and I know how thoroughly each couple has been investigated before they were approved as adoptee parents). The government should be suing the media for all those stories of siblings battling -- and even killing each other -- over wealth and property. Or for reports about physically or mentally challenged people being abandoned by their families/siblings. How, going by these recent revelatory guidelines by the government -- can this possibly be true?

Here’s another remarkable statement Swaraj made: ‘Mujhe dukh hai yeh baat kehte hue ki jo cheez zaroorat ke naam pe shuru ki gayi thi woh ab shauk ban gayi hai (I am saddened to say that something which began as a requirement has now become a hobby).'

And how does she know it? Well, of course, because, and I am going to quote her directly, ‘Kitne hi itne udhaharan hamare saamne, aur badi celebrities ke hain, jinka apna bachcha ek nahi do-do hain, aur beta aur beti dono hai, toh bhi unhone surrogate child kiya hai. Toh yeh zaroorat ke liye toh hai anumati, shauk ke liye nahi hai. Aur na is liye hai ki kyonki patni prasav pida nahi sehna chahati, is liye chalo surrogate child kar lo. Yeh koi anand ki cheez nahi hai.’

Here’s what she’s basically saying.

‘We have so many examples, including that of well-known celebrities who have their own child -- in fact, they have two children, a boy and a girl -- yet they have had a third child through surrogacy. Though this bill, we have given permission for a need, not a hobby. Nor will surrogacy be allowed because a wife does not want to go through the pain of delivery.’

And then she adds, ‘So, because your wife does not want to go through the pain of delivering a child, you will pay a poor woman to do so.’

Ultimately, said Swaraj, here’s what the bill would do. Surrogacy, as an economic activity, would be banned. India would no longer be the world’s cheap, rent-a-womb destination. The government’s reason for doing this was, according to her, purely benevolent, far-sighted and revolutionary. All those women who had been conned/coerced/forced into selling their wombs would now be safe. It will, she said, ‘shut down India's surrogacy industry which has thrived on the misery of poor women’.

In a largely patriarchal India, this does happen more often than any decent human being would like it to. Like most other decisions, the decision of renting the womb is not the woman’s or only the woman’s. Factors, mainly financial, come into play. Many a time, the circumstances are grim enough to override the fear of social stigma and even ostracisation at the thought of a woman carrying a child not created by the union of her egg with her husband’s sperm.

India may now be listed as the seventh richest country in the world, but that statistic makes no difference to her poor, who continue to struggle to eke out a living.

And so, these women rent their womb in a trade where they are most often cheated. In the many fly-by-night surrogacy clinics that have opened up in India over the years, the focus is entirely on the soon-to-be-born child, the source of profit. The mother-to-be matters only as the receptacle bearing this source of this profit.

If, in the process, her health is at risk, it’s not really a matter of concern as long as the baby is not affected. And the fact that she has to part with the baby -- a living, kicking, moving human being she has nursed in her womb for nine months -- is just swept under the carpet.

Sadly, what the bill does is blatantly ignore the ‘commercial’ surrogate mothers and the reason why they rent out their womb.