The writer is a human rights activist and researcher based in New Delhi
Mother, Maybe
The Surrogacy Bill 2016 discriminates between who can and cannot be a mother.
According to the Surrogacy (Regulation) Bill, 2016, only heterosexual couples — married for at least five years — who have been medically certified as infertile, are allowed to opt for surrogacy. Banning commercial surrogacy, the Bill requires the surrogate woman to be a “close relative” of the couple, thereby allowing altruistic surrogacy. In order to curb unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and trafficking of women for surrogacy, the draft law has a provision for imprisonment up to 10 years along with a heavy fine. While any move to curb exploitation and protect women’s rights is welcome, the Surrogacy Bill lacks foresight.
According to the Bill, only legally married Indian couples that are “medically proven infertile” can opt for surrogacy, hence excluding single people, live-in couples and same-sex couples. The Bill also allows only a “close relative” to be a surrogate mother, thereby excluding couples who might not have a close family unit, family support or members who would be willing to be support them. Inter-faith and inter-caste couples in India are often shunned by their families for breaking social norms, and will not enjoy family support as perceived in this Bill. The most recent example of this is the Hadiya case, where an inter-faith couple was harassed by the state under unfounded charges of “love jihad”. The hetero-patriarchal vocabulary of the Bill envisions a heterosexual couple, legally married and preferably within their caste, to be able to enjoy the right to have a child through surrogacy.
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