Background: The Development of Surrogacy in India
Since the legalization of
commercial surrogacy in India in 2002, the industry has boomed due to
the advanced assisted reproductive technology (ART) and its relatively
low medical costs. With an unregulated market having more than 25,000
children born in 2015 (Söderström-Anttila et al., 2016), and was
estimated to worth $2.3 billion (Deonandan et al.,
2012), the rapidly growing
transnational demand for surrogacy (Vora, 2013) has urged many young and
often less-educated women living in rural India to become surrogates.
However,
as more media stories began to unfold the concerns regarding the
unethical treatments on surrogates and predicaments of parentless and
stateless surrogacy kids, the Indian government drafted a new Surrogacy
(Regulation) Bill in 2016 banning cross-border commercial surrogacy,
permitting only “altruistic surrogacy” for heterosexual infertile
Indian couples.
Passed by the lower house of Parliament in August 2019 and approved by
the union Cabinet on recommend amendments to the legislation in February
202011For surrogates including allowing any “willing woman”
including widows and divorced woman the rights to avail for surrogacy,
removing the five-year waiting period, and extending their insurance
coverage to three years., the new Bill awaiting final approval by the
upper house is deemed as part of
Prime Minister Modi’s
conservative agenda to legally preserve traditional family and gender
norms (Rozée et al 2020: 12). Even though the growing trend of awareness
towards protecting women’s “right to make reproductive choices ”
has been considered by the Supreme Court under Article 21 for
“liberty”, the Indian “structure”, from Bourdieu’s Habitusperspectives and as Pande interpreted (2009a: 382), is a
“California-like market liberalism fixed by rigid political narratives
and regulatory dogmas”.
Without fully considering the
legislation’s multifaceted influences on women’s rights to their bodies,
the non-paid and compassion-only altruistic model not only denies the
legitimacy of women as wage earners but limits the possibility of
surrogates’ portfolio of Bourdieu’s capital to convert from one
to another. As the Bill remains a
needs-based rather a rights-based approach towards surrogacy, women
participating fear that the upcoming ban in the post-COVID era would
push the surrogacy market underground, leaving them further behind in
poverty. Falling short of
protecting bodily autonomy, female bodies are no longer their own as
they are prone to monetarisation through exploitative reproductive
technology practices. As a result, the value attached to bodies may be
easily distorted under the paternalistic and imbalanced gendered
relations both within the society and at home (Vora, 2013).