The Surrogacy (Regulation) Act, 2021: A Critique

Abstract

In vitro fertilization (IVF) and surrogacy have enabled many to achieve their dreams of parenthood. With a turnover of $500 million, reproductive tourism in India has helped transform the country into a “global baby factory.” However, as the surrogacy industry grew, so did concerns of women’s exploitation, commodification of motherhood, and human rights violations. In an effort to prevent women from being exploited, the Indian government had taken successive administrative measures to regulate surrogacy. The Surrogacy (Regulation) Bill, 2016 and Assisted Reproductive Technologies Bill 2008 were introduced in the Parliament to regulate various aspects of surrogacy arrangements. Yet, it was not until 25 January 2022, that the Surrogacy (Regulation) Act, 2021 went into effect. The Act does, however, leave certain important points unaddressed. The article claims that the legislation’s purposeful exclusion of the LGBTQ population and emphasis on “familial altruism” stinks of inequity and moral conservatism. It also delineates the mechanics of altruistic surrogacy by examining documents that illustrate how the connections between money and morality are framed via the framing of altruism. The article therefore demands that a comprehensive dialogue must be held considering the socio-economic realities of Indian society, or else India risks enacting yet another law that cannot be implemented or that society dislikes.

Background

India has experienced phenomenal growth in the use of assisted reproductive technologies (ART) and particularly surrogacy. During the first decade of the twenty-first century, the country first had its tryst with surrogacy. With $500 million in revenue, reproductive tourism in India has helped transform the country into a “global baby factory” with its liberal approach to surrogacy, offering a safe haven to couples seeking domestic or transnational surrogacy services (Krawiec 2009; Twine 2015; Kumar 2019). Surrogacy as business process outsourcing has grown due to a plentiful supply of low-cost labor, lax legislation, English-speaking medical practitioners, and cutting-edge medical facilities. In India, one also finds competent hospitals, and expectant mothers who would deliver children at a fraction of the price that their counterparts in wealthy nations would demand. However, as the surrogacy industry grew, concerns relating to exploitation of women, commodification of motherhood, and human rights violations also emerged. The surrogacy issue became widely publicized in 2008 when “Baby Manji Yamada v. Union of India (2008) (13) SCC 518” and “Jan Balaz v. Anand Municipality and others (Gujarat High Court 2009)”1 exposed ethical concerns regarding paternity, citizenship, and other issues. In the past decade, an increasing number of studies have investigated the ethical and legal repercussions of a lack of autonomy, agency, and informed consent arising from the unrestrained commercial use of surrogacy in international trade (Gola 2021; Jaiswal 2012; Pande 2009; Tanderup et al. 2015). In this regard, the court drew attention to a deficiency in the regulatory framework and remarked that “in India there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements” (Srivastava 2021, 7). Furthermore, the court concluded, “in the present legal framework, [we] have no other choice but to hold that the babies born in India to the gestational surrogate are citizens of this country” (Srivastava 2021, 8) despite the fact that both intending parents were foreign nationals.

Surrogacy is (often) a quasi-legal process through which individuals or couples might seek genetically related children by engaging a gestational carrier to bring the pregnancy to term (Morgan 2009). Uncertainty over legality and regulation is one of the most influential elements affecting business and fueling the shadow economies that typically thrive in the hospital/biomedical sector. There are two forms of surrogacy: gestational surrogacy and traditional surrogacy (Garner 2009). In a traditional surrogacy, the intended father’s sperm is used to fertilize the surrogate mother, who is also the child’s biological mother. In gestational surrogacy, the surrogate mother gets implanted with an embryo by in vitro fertilization or another similar technique, but she has no genetic relationship to the fetus (Bindel 2015). These parents would also be the child’s biological parents if the embryo is developed using the gametes of the commissioning parents. Based on whether or not the surrogate mother received payment from the intended parents in addition to pregnancy-related costs, surrogacy can also be categorized as either commercial or altruistic (Srivastava 2021).

There has been a major shift in the government’s approach to surrogacy over the last few decades. Surrogacy guidelines did not exist before 2002. The preliminary national standards for the accreditation, oversight, and licensing of ART institutions in India were released by the Indian Council of Medical Research (hereinafter ICMR) in 2002. In 2005, these guidelines were approved by the Ministry of Health and Family Welfare, Government of India. It is important to emphasize that these guidelines did not forbid business arrangements (Parry and Ghoshal 2018). The proposed ART Bill 2008 sought to define the rights and obligations of parties to a surrogacy agreement and provide a thorough legal framework for the regulation of these medical procedures. Additionally, this statute listed the rights and liabilities of patients, donors, surrogates, and first-time recipients of a child through ART. Surprisingly, the first version of the ART bill allowed surrogate mothers to obtain monetary remuneration for their services. The bill stipulated that the surrogate mother did not need to be close to the commissioning parents, nor was it necessary for them to keep it a secret. Back then, the provisions in the bill indicated that it was meant to regulate commercial surrogacy rather than outlaw it until 2008. The Law Commission of India's August 2009 Report, 228—which was sent to the Ministry of Law and Justice—articulated the initial regulatory objective for outlawing commercial surrogacy. In 2012 and 2014, the Ministry of Home Affairs announced notices restricting the provision of medical visas for surrogacy commissioning to an “eligible” set of commissioning parents. The import of embryos for purposes other than research is now prohibited by the Ministry of Commerce. Therefore, under India’s existing regulatory system, practically no form of surrogacy performed by foreigners is permitted (Srivastava 2021; Singh 2019).

The Surrogacy (Regulation) Act, 2021 (SRA) was approved by the Parliament last year in response to years of agitation and is intended to establish and regulate the surrogacy procedure. The Act went into effect on 25 January 2022, following the issuance of the notification in the Official Gazette by the Union Government (Tekriwal 2022). The Act does, however, leave certain important points unaddressed, in addition to some other gaps that we shall cover below. The purpose of the paper is to draw attention to the necessity of amending the Act as relevant and in best interests of the populace in order to make it more inclusive and comprehensible. The Act has mostly been criticized for its restrictions on who can utilize surrogacy services, its exclusion of non-binary gender, its ban on commercial surrogacy, its omission of traditional surrogacy, and the challenges that medical professionals may encounter as a result of the law’s ambiguity. The issues with this ostensibly straightforward procedure are significant; the requirements are arbitrary, tacitly discriminatory, and short-sighted. The legislation’s purposeful exclusion of the LGBTQ population, intended parents who are unmarried, divorced, or bereaved, and emphasis on “familial altruism” stinks of inequity and moral conservatism (Singh 2019, para.3). This served as the impetus for our current study, which examined whether the new Bill complies with the demands and standards of the modern Indian society in terms of appropriateness and applicability. Based on the review of medical, bioethical, and sociological literature, this paper has employed an interdisciplinary research approach (socio-economic and legal). The study aims to conduct an ethical analysis solely on issues pertaining to surrogacy in all its facets. The paper examines how the recent surrogacy regulation act’s emphasis on “familial altruism” undermines the rights of individuals involved in the process. Additionally, the Indian Government’s flagship program of digital India has significantly increased news media’s responsibility of influencing and promoting public awareness and informing people about recent developments. In this regard, the article has applied the content analysis methodology and resorted to netnographic research as it begins with a naturalistic approach to assist in strategically analyzing the news content vis-a-vis surrogacy.

What is in the Surrogacy (Regulation) Act, 2021?

The Surrogacy (Regulation) Act, 2021 (Ministry of Law and Justice 2021) claims to be a comprehensive work covering all facets of the subject. The Act purports to stop child abandonment rates which are on the rise in India (the world’s emerging surrogacy hub), as well as the exploitation of women and intermediaries who import human embryos and gametes. The SRA 2021 endorses altruistic surrogacy solely with “close relatives” as the only acceptable way to naturally deliver a baby outside of the womb of the genetic mother (Ministry of Law and Justice 2021). It intends to make commercial surrogacy unenforceable, which necessitates trading human gametes and embryos as well as selling and purchasing surrogate's services in exchange for money (aside from insurance), while enabling altruistic surrogacy, which has no compensation or benefits for the surrogates other than the payment of incurred medical expenses and insurance coverage. According to Surrogacy (Regulation) Bill, 2019 (Srivastava 2021), only accredited surrogacy facilities will be permitted to perform surrogacy-related medical operations. It also makes sure they are accredited and prohibits them from hiring unqualified staff or from pressuring women to be surrogates by deceptive advertising or other means. Essentially, no abortions can take place in these clinics without surrogate mothers' consent and clearance from competent authorities. Additionally, it precludes the sex selection of the child and the preservation of human gametes and embryos. A woman is only allowed to act as a surrogate once in her lifetime. Besides a certificate of good health, she must also have one attesting to her mental and physical well-being (Ministry of Law and Justice 2021). Furthermore, since the surrogates cannot contribute her own gametes, only gestational surrogacy is possible. For the prospective couple to be able to receive treatment, they will also need a “certificate of eligibility” and a “certificate of essentiality” from the certified agency (Srivastava 2021, 8). Only if an intended couple experiences infertility and certain other criteria will a certificate of essentiality be granted. A certificate of eligibility is issued to the pair if they have been married for at least five years, are Indian nationals, and fall between the ages of 26 and 55 for the male and 23 and 50 for the female. They are also prohibited from having children, with the exception of those with physical or mental disabilities. In accordance with Sect. 4(ii)(a) formed under Sect. 17 of the Act, the National Assisted Reproductive Technology and Surrogacy Board must deliver certifications of recommendation to both the intended couple and the surrogate. According to Sect. 2(h) of the Act, a “intending couple” is an Indian man and woman who are lawfully married and over the age of 21 and 18, respectively. In accordance with Sect. 2(r) of the Act, “intending couple” refers to a couple who wants to become parents through surrogacy and who possesses medical documents supporting gestational surrogacy, while in accordance with Sect. 2(a) of the Act, an intended woman is a “widow” or “divorcee” between the ages of 35 and 45 who intends to utilize this service. Any surrogate-born child will be recognized as the biological child of the intending parents. If a child is born through a surrogacy procedure, the intended couple can neither abandon the child, either inside or outside India, because of any genetic or birth defect, or any other medical defects developing later, the child's sex, multiple conceptions, and the like. According to the SRA 2021, the surrogacy technique is only legal for intended parents who may be shown to be infertile, and not for commercial gain. It is unacceptable to have children for the purpose of prostitution, selling, or other forms of exploitation. Among the crimes committed are promoting commercial surrogacy, taking advantage of surrogate mothers, abandoning, using, or ostracizing surrogate children, and acquiring or importing human embryos and gametes for surrogacy.

This removes a segment of the population, such as unmarried women who wish to have children but cannot. In spite of this law’s seeming embrace of modernity, it nevertheless serves to perpetuate the historic taboo against recognizing motherhood outside of marriage. According to the Medical Termination of Pregnancy Act of 1971, a woman is not permitted to have an abortion. Also, they are penalized for becoming pregnant as a result of sexual relations by having to give birth. In contrast, widows or single women are not permitted to use surrogacy services even if they want children but cannot bear them (Manjunath 2018). The 2021 Act defines a couple as an “Indian man and woman” who are married and over the age of 21 and 18, respectively. The restrictions exclude anyone living in a live-in relationship and wishing to use these services. By describing the definition of a couple to that stipulated in Sect. 2 (h), the Act reinforces the institution of marriage (Sasha 2020). Couples who could be medically unfit or who are coping with chronic diseases that raise the likelihood of such issues for the unborn child are also excluded as a result of the Act. The Act remains ambiguous regarding which conditions or diseases are permissible for surrogacy, with discretion remaining with the National Assisted Reproductive Technology and Surrogacy Board with respect to this issue.

Exclusion of the LGBTQIA+ community

The Act highlights the gender discrimination that still persists in our culture and forbids same-sex and non-binary couples from sharing in the joy of parenthood by only allowing a man and a woman alone who are legally married under Indian law to avail surrogacy operations. The Act is a blatant insult to the LGBTQ + community and single fathers desiring a baby. Lesbian, gay, bisexual, transgender, and queer (LGBTQ +) individuals account for around 15% of the total population, whereas single parents account for approximately 20% of surrogacy users (In Navtej Singh Johar v. Union of India (2018), the Supreme Court repealed Sect. 377 of the Indian Penal Code’s restriction on homosexuality (Babbar and Sivakami 2022)). However, same-sex weddings are still illegal in India, prohibiting a subset of same-sex couples from fulfilling the criteria of Sect. 2(h) of the Act. In addition, the provision emphasizes that a partnership must consist of a man and a woman, restricting surrogacy to heterosexual married couples only. Additionally, the provision makes it explicitly clear that only heterosexual married couples would be eligible for availing surrogacy (Fotedar 2019). The administration's unabashed homophobia has never been more apparent than it is now. Sushma Swaraj ((Lt) Former Minister of External Affairs of India (2014–19)) stated categorically that surrogacy for homosexuals is contrary to “Indian ethos” (Malhotra 2016).

To promote equality in society, to which every Indian citizen is entitled by virtue of the basic liberties given to them by the Indian Constitution, it is essential that the LGBTQ community be recognized. The Supreme Court had to address a surrogacy-related issue for the first time in the 2008 case of Baby Manji Yamada v. Union of India. In that instance, the court recognized surrogacy as a method of embracing parenthood and accepted the idea of a single parent or a homosexual couple being the legal parents. The latter has been entirely refuted by the Act's implementation. Therefore, it is important to grant heterosexual couples, as well as homosexual couples and non-binary groups within the population, the status and privilege of bearing children (Kannan 2022). Artificial Reproductive Technologies (ART) have transformed conceptions of reproduction and parenting by emphasizing the desire to raise a child if it is not possible biologically. This does not discriminate against prospective parents based on moral or societal criteria. Although the intent-based approach to surrogate parenting is not codified, the Supreme Court has determined that an individual’s real purpose and contribution to raising the kid takes precedence over genetic link or a formally enforceable marriage when considering custody and guardianship concerns. The justification presents a compelling argument for extending everyone's right to become a parent through surrogacy without restriction based on a person's biological capacity to do so since it distinguishes between legal and biological parenting (Tekriwal 2022).

The Surrogacy (Regulation) Bill may be challenged on constitutional grounds also since it goes against Article 21 privacy regulations. The traditional notion of a family has been replaced by intent-based parenting and private ordering, which place a greater emphasis on individual autonomy. In Puttaswamy, the Supreme Court particularly mentioned family reproductive autonomy—which includes independent choices about procreation—as crucial elements of the privacy rights (Saini 2022). Furthermore, equality before the law is outlined in Article 14 of the Constitution, which forbids any arbitrary legislation without a just, fair, and rationale justification for the discriminatory practices. This suggests that the State cannot, by legislation, prohibit a particular set of individuals the ability to access surrogacy (in any form that it has declared legitimate) without providing them with any justification. Any restriction on a fundamental right must always take into account what is essential for “the greater good” of society. Other than the engaged couples, the intended baby is the only stakeholder having an interest in the surrogacy scenario. The intended child’s emotional and psychological well-being is more essential than any legal claim to parentage. The Supreme Court has declared that the welfare of the child encompasses stability and security, affection, and an environment conducive to the child's healthy development. This view is the result of many judicial decisions on the matter by Indian and foreign courts. Regardless of the nature of the parent–child connection, these conditions are ultimately the outcome of circumstance and temperament. There is no evidence that a devoted homosexual couple cannot raise their children in the same manner as a heterosexual pair. In light of this, the Bill should not prohibit a couple or individual from becoming parents through surrogacy if their sexual orientation has no impact on the child's welfare or upbringing.

Re-Examining Altruistic Surrogacy

In Australia, China, Japan, the UK, and most of Europe, commercial surrogacy is illegal. Despite its popularity, there is evidence to argue against outrightly prohibiting commercial surrogacy. There is a classic compatibility issue at the heart of this debate, particularly in the context of India. A paternalistic state, beliefs regarding women's autonomy and ownership of their bodies, and the neoliberal market are all part of this tangled web. It is recognized that destitute women in India who turn to surrogacy to earn money are routinely financially exploited, and that their socio-economic status denies them the right to freely consent (Chandran 2022). By banning commercial surrogacy, we would be unfair to these women since they would lose out on this opportunity to provide for their families. Additionally, these restrictions also violate the Indian Constitution, which protects women’s physical autonomy and their right to earn a living (Banerjee and Kotiswaran 2021). A blanket ban results in system failures. For instance, the article claims sex-work and unregulated abortion are over-used due to the validity of the conclusions they demonstrate. However, criminalizing such practices does not eliminate them. Several countries, including Bangladesh, are reporting a rise in surrogacy with foreign intended parents following India's ban. Women might be deprived of a respectable source of income as well as their reproductive rights if surrogacy is forced underground or into nations with limited regulation, such as Cambodia (Bassan 2018). In reality, involving family members might result in additional complications, such as varied degrees of social stigma directed at both the commissioning couple and the surrogate mother. There might be accusations and character assassination of surrogate mothers; pressure from the family’s elder married women, especially daughters-in-law, who could be pressured to have the child against their choice. Because the surrogate mother is still seen as a “close relative” who fills a crucial role within the family, parenting would also be challenging owing to hostility within the family. This results in the surrogate mother unknowingly interfering with the child’s future decisions; an unauthorized quid pro quo, breach of privacy and confidence, or unlimited payment in cash or in kind are just a few instances. As a consequence, altruistic surrogacy is not feasible in India, since it is permitted only within close relatives, which, by other means, is exploitative. However, it may be adequately successful in other nations. Legislators must take ethical action in the surrogacy industry rather than depending on a moral selflessness that is both ludicrous to require of a person and nearly impossible to achieve.

Instead, it forces these activities underground, where they are far more dangerous and less regulated. As a result of the lack of accountability, more children will be abandoned and women in dire need of money will continue to be mistreated owing to the increased hazards of dangerous medical operations and the consequent underground market. In lieu of simply prohibiting commercial surrogacy, it is necessary to support laws designed to protect the economic and health interests of these women. Unfortunately, the Bill disregards the actual interests of its stakeholders in favor of advancing an odd kind of moral conservatism in a crude and poorly thought-out manner. The parties it seeks to assist, notably intended parents who will utilize this choice to raise a child and women who can use surrogacy because their basic rights to bodily autonomy and the ability to earn a livelihood are protected, must be appropriately considered. The idea that a woman, whether a close relative or not, should be expected to care for a child for nine months (plus recovery time) without being compensated and acknowledged for the toll it takes on her bodily and emotional health is simply ludicrous. For women who are near relatives, the altruistic surrogacy form is still exploitative, but in a different way, and with no remuneration, makes it much worse. Alternatives such as compensatory surrogacy will secure the exploited stakeholder, who is the intended recipient of this bill, without taking away their bodily autonomy and right to sustenance; however, further thought is required. Thus, this provision presents the prospect of a morally restrained alternative to both unrestricted commercial surrogacy and unrealistic altruistic surrogacy.

As a result, this section shows the link between money and morality as well as the impact of financial relationships on morally relevant topics. A document that outlines the mechanisms of altruistic surrogacy is examined as a way of understanding how money and morality are linked. The research contends that social ties are not harmed by money since they are all built around its movements, exchanges, and circulations (Zelizer 2005). The Surrogacy (Regulation) Bill, 2019 that was referred by the Select Committee of Rajya Sabha (2020, para 4.8, 22) stipulated that in order to avoid surrogacy from becoming a form of “forced labour” or luring “women living below the poverty line” into becoming surrogates, altruistic surrogacy should only be performed by a “close relative”. Yet, the 102nd report of the Parliamentary Standing Committee on Health and Family Welfare (2017, 16) on the Surrogacy (Regulation) Bill, 2016 had argued that permitting only “close relatives” might result in property feuds and could potentially “shak(e) apart the fundamental fabric of Indian family”. A couple seeking a surrogate would have a difficult time finding an acceptable relative in the nuclear family era (p. 11). According to another expert on the panel, the use of “close relatives” as surrogate mothers may pose “problems with family, society institutions, and norms” (p. 12). The Transplantation of Human Organ and Tissue Act (HOTA) of 1994, which permits organ donations between “close relatives” such as “son, daughter, father, mother, brother or sister,” including relationships based on “affection or attachment” or relationships motivated by “special reasons,” served as the model for the Select Committee’s proposal to expand the definitions of “close relative”.2 Here, it is crucial to remember that the Select Committee’s report was entirely advisory in nature, with little judicial or governmental authority to impose policy reforms. Studies have shown that “close relative” may also be interpreted in light of the Indian Companies Act of 2013, which was enacted to distinguish between family, an individual, and a corporation in order to examine financial conflicts of interest or co-parcenary status (Chandran 2022). A significant property tax cut and asset reduction is available to individuals under the Companies Act when they establish themselves as members of the Hindu Undivided Family (HUF). According to the Income Tax Department of the Government of India, a HUF is a group of persons who are all directly derived from a single ancestor, including their husbands and unmarried daughters. A Hindu family forms a HUF on its own, without the need for a contract. Only inheritance from a father, grandfather, or great-grandfather qualifies as “ancestral” according to HUF’s patrilineal reasoning for inheritance. Therefore, property that can be demonstrated to be owned by a HUF is exempted from taxes imposed on individually or as privately owned property. Although the law views families as morally strong institutions that are in opposition to the commercial logic of the market, it also acknowledges families as legitimate protectors of private property, bestowing heirship, and inheritance rights on children. Family ideals entrenched in laws governing joint ownership of assets, property, and succession are evoked in the selection processes for an altruistic surrogate in order to ensure that the lines of descent and kinship do not clash with the need for a “close relative.”

The Transplantation of Human Organs Act, 1994, was enacted in India to regulate the commercialization involved in the selling of organs and claimed to permit the transplantation and removal of organs solely for “therapeutic” purpose (Chandran 2022). The state was aware of the ethical gray area created by approving the removal of a person’s organ for transplantation into the body of a sick or in need individual. In light of this, only organs from a “close relative” were permitted for transplantation. All states therefore have authorization committees to verify whether the donors and recipients are related. While the only means of communication between the donor and receiver is via the exchange of money, a unique conception of biologism is used to fabricate a convincing story of kinship. These intricate fictions confirm retrospectively the sale of organs as “donations.” The “illegal” selling of organs is frequently rationalized by a feeling of family obligation, even if these fabrications and proof of connection are employed to soothe any worries about financial gain. The Parliamentary Standing Committee (2017) defines altruistic surrogacy as selfless and intended to help others. It has been observed, however, that in the case of organ donations patients usually consider putting someone close to them at risk as futile when they could just buy a kidney (Parliamentary Standing Committee 2017). Consequently, it is observed that the relatives, as the custodians and gatekeepers of altruism, are in no way different from the capitalistic trait of market, and the monetary exchanges are ingrained within the rationale of familial compassion and love in order to promote altruism. They do not alleviate worries about the commercialization of reproductive organs; nevertheless, familial connection and relatedness facilitate the establishment of a market for wombs and organs as products. Families may sometimes turn to the marketplace out of “love” instead of inward. The distinctions between moneyed and familial relationships, however, blur in the process when financial flows join emotive relationships (such as the decision to purchase a kidney rather than donate oneself), legal fictions (for documentation), and biological compatibility (for organs).

This is also evident when surrogate mothers are referred to as sisters, co-mothers, and wealthy relatives by intended parents who ingeniously recreate the family. A “network of intimacy” is one way that researchers describe how surrogates re-embed labor and trade links (Rudrappa and Collins 2015). The surrogate’s labor is being conscripted into the heteronormative family, where familial boundaries are being redefined to make her job appear altruistic. Therefore, the dichotomies between “baby selling” and altruistic sacrifice are problematic when money is used to simulate heteronormative relationships. Particularly in the context of surrogacy, when families recombine in genetic, gestational, social, legal, and biological ways, altruism and commercialism—which necessitates the existence of financial incentives and interests—are co-produced in conditional ways. Through the control of surrogacy law, “altruism” regulates the interaction between the commercial logic of the market and the familial logic of ownership. According to the Surrogacy (Regulation) Bill, 2016, a “near relative” is a family that is socially cohesive, devoid of financial pressures, and resistant to the profit-driven logic of business. The PSC Report, however, calls attention to the regulations enabling organ donation, where unusual emotional linkages may be compared to biogenetic or marital ties since they are often absent from nuclear families. Close relatives may make property transfers more difficult; thus, the Companies Act is used to determine which ties may be taken into account when allocating assets (Parliamentary Standing Committee 2017).

The subsequent section weaves the economics of altruism, family, and law into this intricate web. It emphasizes ethnographic insight to interpret how notions of familial interests and restrictions, sentimental connections, and relevant legislation that pertain to surrogacy interact in complex ways. Considering poverty as a significant barrier to surrogacy, officials of the National Commission for Women (NCW) stated in the 2017 PSC report that government intervention in surrogacy regulations should focus on rehabilitation, skill development, and other areas. As noted by the Parliamentary Standing Committee (2017, 15), “harsh realities of the poverty-stricken families cannot simply suggest taking away the opportunity surrogacy provides to a family to better their lives”. The Committee states that the best course of action is to prohibit women from serving as surrogate mothers more than once in order to stop the “professionalization” of the practice. Essentially, the state is committed to enabling marginalized women to access economic opportunities by sanctioning surrogacy performed once, within the law, in exchange for payment, suggesting that poor women are more vulnerable to the moral manipulations of surrogacy.

In spite of the compulsions of poverty, the report of the Select Committee of the Rajya Sabha (2020) notes that women’s reproductive potential cannot be considered an economic opportunity. It contends that the only way to guarantee that financial incentives would not persuade a woman to become a surrogate mother is to limit economic benefits. The study affirms the state’s moral obligation to uphold the principle that mothering should never be inspired or driven by materialistic considerations. This relationship between morality, poverty, and state commitment is intriguing because it raises questions about women working as “professional” surrogates for pay, while middle-class and wealthy clients who must pass “social-economic background checks” in order to be eligible for surrogacy are viewed as morally indifferent to their financial circumstances. The idea that poverty rather than the exchange of money itself primarily causes moral corruption shows that the state's moral prerogatives are focused on controlling the flow and direction of money rather than the existence of moneyed transactions. In a context where the material and moral economies are intertwined, categories such as altruistic and compensated/commercialized, or unpaid and paid, are moral as well as monetary.

Discussion and Conclusion

The article claims that women see motherhood as being intrinsically linked to both the material and moral spheres, whereas the state sees morality as being present in the regulation of financial flows. Instead of denying payment, surrogate mothers traverse the moral and ethical spheres of surrogacy by coming across moral obligations and moral conundrums that are interwoven with economic exchanges. Concerns that the “instinct” of motherhood will be warped or driven by money, particularly in the context of surrogacy, show a rudimentary grasp of the dynamics of production and reproduction that women engage with in their interpersonal relationships and daily lives. A number of concerns arise when the state gets involved with family matters, whether it is through “near relatives” in the HOTA, “undivided” families in the Companies Act, or altruistic surrogacy agreements seeking a “close relative.” It is therefore imperative that surrogate mothers' labor be articulated in the context of the already precarious labor relationships often associated with surrogacy. Rather than remaining unaffected by financial flows, intimate relationships (for example, with spouses, families, and intended parents) provide moral guidelines for interactions with work, money, and household duties. Although the Act condemns commercial surrogacy, it does not claim that reproductive labor cannot be exchanged for money. Embracing surrogacy simplifies and equates reproductive and productive labor to compensate for salary loss. Therefore, despite the fact that a pay provision is included in the act to differentiate between productive and reproductive labor, the paper contends that this difference is erroneous. This contextualizes surrogacy within an overall continuum of devalued and precarious gendered employment, advocating for rethinking rational compensation models and revaluing women's work outside of a productive/reproductive paradigm. Also highlighted in the article is that this legislation still needs to be fine-tuned significantly. The purpose of law in India should be to guarantee high levels of care, consent, and recompense for everyone engaged in providing reproductive services. This includes those seeking surrogates and commissioning couples who are dealing with the shame of infertility brought on by incurable reproductive disorders. On a medical examination, some abnormalities, including uterine malformation or absence, for which surrogacy is the only treatment, are instantly apparent. Therefore, the minimum 5-year waiting period proposed by the bill prior to getting a surrogate has no scientific basis and is capricious and exclusionary. The article also discusses how the Act's exclusionary nature prohibits unmarried women and members of the LGBTQ community from choosing surrogacy. It is ludicrous that single women in a country where they are able to adopt and live with live-in partners cannot avail surrogacy. Furthermore, denying the LGBTQ community the ability to use surrogates simply serves to perpetuate the stigma that was eradicated with the repeal of Article 377. For many people who do not belong to the heterosexual ghetto, this behavior becomes illegal in the contemporary environment as Indian society grows more inclusive. The Act’s exclusionary nature reveals single women’s invisibility in reproductive health care, as these women are further marginalized, denied access to, and not permitted to participate in reproductive health care. Therefore, even while examining the intertwining socio-economic situations of the large percentage of Indian surrogates, the positive discourse around the “new Indian women” is inherently diluted and undermined. This states that though “new Indian woman” has risen to economic and political prominence in recent decades in India, she still has limited access to reproductive technologies. For this reason, the article claims that a comprehensive dialogue must be held considering the socio-economic realities of Indian society, or else India risks enacting yet another law that cannot be implemented or that society dislikes.

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