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).