Context

• The Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (ART) (Regulation) Act, enacted in 2021, have created a framework for regulating surrogacy and other reproductive technologies in India.
• The Supreme Court of India is currently examining challenges to certain provisions, particularly the prohibition on compensating surrogate mothers.
• Amid these developments, it is important to have an assessment of the legal developments, ethical dilemmas, and the ongoing debate around the compensation model for surrogates in India.

Historical Context and the Court's Role in Surrogacy Cases

• Historical Context
  • The Indian judiciary first encountered surrogacy-related cases in the early 2000s.
  • These cases often dealt with the legal status of children born through transnational surrogacy arrangements, which were common before being banned in 2016.
  • Such cases frequently involved the risk of children being rendered stateless, as legal systems struggled to determine their nationality and parental rights.
  • More recently, the courts have explored surrogacy from the perspective of parental rights, particularly concerning maternity leave entitlements for women who become mothers through surrogacy.
• The Case of Jayashree Wad vs Union of India (2016)
  • It stands out as a landmark legal event, which led to the prohibition of commercial surrogacy through the enactment of the Surrogacy Act.
  • However, the broader questions concerning compensation for surrogate mothers such as the nature of their labour and whether their contribution warrants payment remain inadequately addressed in the current legal framework.

Provisions of the Surrogacy Act: A Ban on Commercial Surrogacy and the Rationale Behind It

• The Surrogacy Act explicitly prohibits commercial surrogacy, disallowing any payments to surrogate mothers beyond medical expenses and insurance coverage.
• The Act allows any willing woman between the ages of 25 and 35 to serve as a surrogate once in her lifetime on an altruistic basis, meaning she cannot receive any form of remuneration or reward.
• The surrogate must sign an agreement relinquishing all rights to the child after birth, framing her role as one of helping the intended parents.
• The rationale for banning payments stems from concerns about exploitation, especially in cases where economically disadvantaged women might be coerced into surrogacy by intermediaries or clinics.
• The law aims to eliminate the commercial aspects of surrogacy, attempting to prevent the commodification of women's bodies and the potential trafficking of children.
• Nonetheless, this raises significant ethical questions regarding whether the prohibition of compensation truly addresses the core issue of exploitation.

Ethical Dilemmas Surrounding Compensation and the Nature of Surrogacy

• The Altruism Model: Ethical Justifications and Criticisms
  • The Surrogacy Act reflects a strong ethical stance in favour of altruism, portraying surrogacy as an act of compassion where a woman helps another couple realise their desire to become parents.
  • The altruistic model is built on the notion that surrogacy should not be commodified—if surrogates are paid, the relationship risks becoming transactional, reducing the pregnancy to a commercial service.
  • This aligns with the concern that introducing money into surrogacy could lead to the exploitation of vulnerable women, particularly those from economically disadvantaged backgrounds who might be coerced into surrogacy by financial necessity.
• Commodification of Women’s Bodies and the Sale of Children
  • One of the primary ethical arguments against compensating surrogates is the fear that it could lead to the commodification of women's bodies.
  • Critics argue that if surrogacy is treated as a paid service, it risks turning women's wombs into rental spaces, thereby reducing their bodies to mere instruments for procreation.
  • This perspective aligns with broader ethical concerns about the commercialisation of human reproduction, where pregnancy becomes something that can be bought and sold like a product.
• Exploitation and Economic Vulnerability
  • The heart of the ethical dilemma around compensation lies in the potential for exploitation.
  • Opponents of a payment model fear that it may disproportionately affect poor women, who may be coerced into surrogacy out of financial desperation.
  • There is concern that commercial surrogacy may exacerbate existing social inequalities, turning surrogacy into a form of reproductive labour that is outsourced to the economically disadvantaged.
  • The risk is that women from poorer backgrounds may be pressured either by intermediaries or by their own economic circumstances into becoming surrogates, thereby deepening their vulnerability rather than empowering them.
• Autonomy and the Right to Self-Determination
  • At the core of the ethical debate on surrogacy compensation is the issue of autonomy.
  • A blanket ban on compensation, as imposed by the Surrogacy Act, restricts women’s ability to make autonomous decisions about their own reproductive capacities.
  • By framing surrogacy as an act of altruism rather than a service, the law implicitly assumes that women would not willingly undertake surrogacy for payment unless they were being exploited or coerced.
  • This assumption undermines the notion of women as rational agents capable of making informed decisions about their bodies and labour.

Parliamentary Committee Recommendation on Compensation and Challenges of Implementation

• Parliamentary Committee Recommendation on Compensation
  • The 2016 Surrogacy Bill was examined by several Parliamentary Committees before its enactment.
  • The Rajya Sabha’s Department-related Parliamentary Standing Committee in its 102nd Report made a critical observation: pregnancy is a long, arduous process that impacts a woman’s health, time, and family.
  • The committee noted that while everyone else involved in the surrogacy process doctors, lawyers, and hospitals gets paid, surrogate mothers are expected to provide their services altruistically.
  • The committee recommended that surrogates should receive reasonable compensation in addition to medical expenses and insurance coverage.
  • The committee’s recommendation sought to balance the need to prevent exploitation with the necessity of recognising the surrogate’s labour.
• The Challenges of Implementation and Unintended Consequences
  • The transition from a commercial surrogacy model to one based on altruism has not been smooth.
  • There have been reports of surrogacy arrangements going underground, with illegal rackets exploiting women in unregulated markets.
  • At the same time, many couples seeking to become parents through surrogacy have struggled to find women willing to act as surrogates under the current altruistic model.
  • Both these phenomena point to the challenges in enforcing the current legal framework and the need to reconsider the prohibition on compensation.

Way Forward: Supreme Court’s Crucial Role

• As the SC reviews the constitutional validity of certain provisions of these laws, it remains to be seen whether the Court will distinguish between the logic of prohibition and the question of fairness in compensation.
• What is clear is that a more balanced regulatory framework one that acknowledges the labour involved in surrogacy and provides for fair compensation could help resolve many of the ethical dilemmas and practical challenges that have emerged since the enactment of these laws.

Conclusion

• The ongoing debate surrounding the Surrogacy Act and ART Act revolves around a fundamental issue which is fairness.
• While the prohibition on compensation was designed to protect women from exploitation, it has, in some cases, created new challenges.
• The failure to recognise pregnancy as a form of labour deserving of compensation undermines the contribution of surrogate mothers, while also leading to unintended consequences, such as underground surrogacy markets.