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Close Relatives and Surrogacy


Madhurjya Mohan Chetia
(The writer can be reached at [email protected])

Recently, surrogacy has been getting importance. The reason behind it is THE SURROGACY (REGULATION) BILL, 2016 which was passed in Lok Sabha on 19 December 2018. This bill has banned commercial surrogacy in India and allows only altruistic surrogacy with a close relative. Commercial surrogacy was made legal in India in 2002. This made India a surrogacy capital since 2002. But most of the victims of surrogacy were the poor women. There are also various other issues related to various foreign couples who hire a surrogate mother in India. The example of the Japanese couple is one among them. A Japanese couple hires a surrogate mother in India but in between the process, the couple got divorced and each of them was unwilling to accept the child. Besides these, there is a continuous issue of exploitation of poor women which makes Indian Legal Commission to think about the surrogacy again. That is why as a modification the new surrogacy bill titled THE SURROGACY (REGULATION) BILL, was proposed in 2016 and recently it was passed by the Lok Sabha. Now surrogacy in India is only allowed for an Indian couple. And within India, it is neither allowed for homosexual couples nor for Live in Relation couples. Among some major decision of Indian judiciary in the last year legalization of homosexuality is also a ground-breaking judgment. Supreme Court has repealed the IPC (Indian Penal Code) section 377 on the basis of the right to privacy and tried to give equality to homosexual people also. Repeal of adultery (IPC 497), Supreme Court decision on Triple Talak also tries to bring gender equality but in the recent scenario on THE SURROGACY (REGULATION) BILL, 2016 doesn’t give the right to the homosexual people for surrogacy. If homosexuality is considered as natural, then desire for a child among the homosexual community is also natural. There is no basis for discrimination against the homosexual community. The scope of this act is spread all over India excluding Jammu and Kashmir. It has mentioned some crucial points for surrogacy. It said that the couples who want to go for surrogacy need to get a district Medical Board Certificate of infertility. This means that surrogacy is a not optional in fact it is the last mean. Next, it says the couple who is going for surrogacy should be age between 26-55 in the case of husband and 23-50 in the case of women. The women who are selected for surrogacy should be aged between 25 to 35 years. This bill also says that a couple can go for surrogacy only after 5 years of their marriage. Now in India, the age of consent is 18 for girls and 21 for boys. If a couple gets married at their consent age, then they can go for surrogacy after 5 years. Where the boy’s age will be 26 and the girl age will be 23. It is a perfect math shown by the bill. But if a man gets married at 51 and women get married in 46 then what will they do? Because after 5 years of their marriage, they will turn 56 and 51 years of age respectively. Biologically this age category couple is more prone to infertility. Although marriage is still a sacred issue in India, Live-in-Relationship is also increasing here. People today wanted to get married in a more matured age. Besides, there is the issue of divorce and remarriage which delay the age for giving birth. In this situation, how is this upper age limit justifiable? The idea of Close Relative is hypocritical. Although the act is not mentioned properly about the definition of close kin. But the idea of close kin is problematic. If we consider the idea of close kin limited to family, then it is problematic. We are not sure to what extent a sister will be willing to give birth to a baby whose father is her own brother. If we see the whole issue of surrogacy in the last few years, then in India it has already taken the form of a huge market. Generally, which type of couple goes for surrogacy? It is mostly the foreigners or the rich Indian couple. Celebrities are another category here. They book surrogate mothers on the basis of money. These surrogate mothers, comes from the economically backward classes. A woman whether working in a public or private sector will hardly be a surrogate. So, if we have to select a surrogate from close kin also it will have to be someone who doesn’t work anywhere. Who is poor? Then there is the idea of altruism? Even the idea of altruistic surrogacy will also lead to the altruism of poor vulnerable women in the circle of close kin. If the condition for the surrogacy occurs in a family, then this category woman will be forced to become a surrogate mother. These category women already don’t have economic resource and now in the name of altruism, they won’t get anything. Besides, when the whole world is talking about meritocracy and self-identity, from where does the idea of close kin come? Will the close kin be willing to surrogate in the case of inter-caste marriage couple? In some way, surrogacy has become a big market in India. It was also a boast of medical tourism in India but at the same time, it is an exploitation of some women. Banning something is not a solution. The focus should be on a new way to reduce exploitation.

(The writer can be reached at [email protected])

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*Baker, B. (1996). A Case for Permitting Altruistic Surrogacy. Hypatia, 11(2), 34-48. Retrieved from http://www.jstor.org/stable/3810263

*Hinson, D., &Mcbrien, M. (2011). Surrogacy Across America. Family Advocate, 34(2), 32-36. Retrieved from http://www.jstor.org/stable/23048203

*Howard, S. (2014). Taming the international commercial surrogacy industry. BMJ: British Medical Journal, 349. Retrieved from https://www.jstor.org/stable/26517675

*THE SURROGACY (REGULATION) BILL, 2016 Retrieved from https://www.prsindia.org/uploads/media/ Surrogacy Surrogacy%20 (Regulation)%20Bill, %202016.pdf)