Why the Supreme Court Must Address Compensation for Surrogates

Context:

• The Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (ART) (Regulation) Act, enacted in 2021, established a framework for regulating surrogacy and other reproductive technologies in India.
• The Supreme Court of India is currently reviewing challenges to certain provisions, notably the prohibition on compensating surrogate mothers.
• It is crucial to assess the legal developments, ethical issues, and ongoing debate surrounding surrogate compensation 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 involved the legal status of children born through transnational surrogacy arrangements, which were prevalent before their ban in 2016.
  • Legal systems faced difficulties in determining the nationality and parental rights of these children, sometimes rendering them stateless.
  • Recent cases have focused on parental rights, particularly maternity leave entitlements for women who become mothers through surrogacy.
• The Case of Jayashree Wad vs Union of India (2016):
  • This landmark case led to the prohibition of commercial surrogacy and the enactment of the Surrogacy Act.
  • However, broader questions about surrogate compensation, including the nature of their labour and whether their contributions deserve payment, remain inadequately addressed in the current legal framework.

Provisions of the Surrogacy Act:

A Ban on Commercial Surrogacy and Its Rationale:

• The Surrogacy Act prohibits commercial surrogacy, allowing only payments for medical expenses and insurance coverage.
• Surrogates must be between the ages of 25 and 35 and can only act as surrogates once, on an altruistic basis, with no remuneration.
• The Act requires surrogates to sign an agreement relinquishing all rights to the child after birth, positioning their role as helping intended parents.
• The rationale for banning payments is to prevent exploitation, especially of economically disadvantaged women who might be coerced into surrogacy by intermediaries or clinics.
• This prohibition aims to eliminate commercial aspects of surrogacy and avoid the commodification of women’s bodies and potential child trafficking.
• However, this raises significant ethical questions about whether banning compensation truly addresses exploitation.

Ethical Issues Concerning Compensation and the Nature of Surrogacy:

• The Altruism Model: Ethical Rationales and Criticisms:
  • The Surrogacy Act adopts an altruistic stance, portraying surrogacy as a compassionate act rather than a commercial transaction.
  • This model is based on the belief that paying surrogates could lead to the commodification of their bodies and reduce pregnancy to a commercial service.
  • Concerns include the potential exploitation of vulnerable women, particularly those from economically disadvantaged backgrounds.
• Commercialization of Women’s Bodies and the Trade in Children:
  • Critics argue that compensating surrogates could lead to the commodification of women’s bodies, turning their wombs into rental spaces.
  • This perspective aligns with broader ethical concerns about the commercialization of human reproduction.
• Exploitation and Economic Vulnerability:
  • The central ethical issue is the potential for exploitation, with fears that payment models may disproportionately impact poor women, coercing them into surrogacy out of financial desperation.
  • Concerns include exacerbating social inequalities and turning surrogacy into a form of outsourced reproductive labor.
• Autonomy and the Right to Self-Determination:
  • A blanket ban on compensation restricts women’s autonomy in making decisions about their reproductive capacities.
  • By framing surrogacy as an altruistic act, the law assumes that women would not willingly undertake surrogacy for payment unless they were coerced, undermining their ability to make informed decisions about their bodies and labor.

• Parliamentary Committee’s Recommendations on Compensation and Implementation Challenges:

Parliamentary Committee Recommendation on Compensation:

• • The Rajya Sabha’s Department-related Parliamentary Standing Committee, in its 102nd Report, observed that while other parties in surrogacy arrangements are compensated, surrogate mothers are expected to provide their services altruistically.
  • The committee recommended reasonable compensation for surrogates, in addition to medical expenses and insurance, to recognize their labor while preventing exploitation.
• Challenges of Implementation and Unintended Consequences:
  • The transition to an altruistic model has led to underground surrogacy arrangements and illegal exploitation.
  • Couples seeking surrogacy have struggled to find willing surrogates under the current model, highlighting enforcement challenges and the need to reconsider the prohibition on compensation.

Way Forward: Supreme Court’s Crucial Role:

• As the Supreme Court reviews the constitutional validity of certain provisions of these laws, it must consider whether the prohibition on compensation is fair and effective.
• A balanced regulatory framework that acknowledges surrogate labor and provides fair compensation could address many ethical and practical issues arising from the current legal framework.

Conclusion:

• The debate surrounding the Surrogacy Act and ART Act centers on fairness and the recognition of surrogate labor.
• The prohibition on compensation, intended to protect women from exploitation, has led to new challenges, including underground surrogacy markets.
• Recognizing pregnancy as labor deserving compensation could help resolve these issues and ensure fair treatment of surrogate mothers.

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