Birthing Justice: Commercial Surrogacy and the Imperative of Women’s Rights in Contemporary India

by | Jan 25, 2024

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About Aparna Bhatnagar

Aparna Bhatnagar is a penultimate year law student at Maharashtra National Law University, Mumbai. Fond of travelling, she often finds herself wandering through cities, disciplines, and life.

Claudia Goldin, the recipient of the 2023 Nobel Prize in Economic Sciences, provides a comprehensive account of women’s labour market participation through the centuries which demonstrates that their contribution to the economy has been historically overlooked. ‘Reproductive labour’, involving multifaceted physical, emotional, and logistical dimensions of human reproduction, emerges as the most imperceptible category of such labour, thereby making it a domain of inherent exploitation. In this article, I argue that an overarching ban on commercial surrogacy, as envisaged by the Indian Surrogacy (Regulation) Act 2021, constitutes a clear infringement upon constitutionally enshrined fundamental rights. The article calls for recognition of reproductive labour as a constituent form of ‘work’ within the Indian labour law framework and recommends a compensation-based model that dignifies the surrogacy process.

Indian Courts’ Reconceptualisation of Reproductive Labour

Within the confines of the Indian legal framework, the judicial narrative has unequivocally recognised reproductive labour, notably in Kirti v Oriental Insurance Company and National Insurance v Minor Deepika. The courts have asserted that unpaid domestic and caregiving labour constitutes the fundamental underpinning of the human experience, warranting acknowledgement and valuation through compensation. Noteworthy is the jurisprudential stance in cases such as the Baby Manji and Jan Balaz, where contracts facilitating commercial surrogacy were not deemed illegal. Consequently, there exists a substantive foundation for categorising the act of bearing and delivering children as a form of labour within the purview of Indian legal framework.

The argument against prohibition of commercial surrogacy is anchored in Article 23 of the Indian Constitution, which guarantees freedom from forced labour, colloquially known as begar.  In the elucidation of the term “begar” in PUDR v Union of India, the Court expanded its ambit to include any form of labour performed against one’s volition and without compensation. Within the context of tightly-knit patriarchal Indian families, there is a high likelihood of women being guilted or forced into altruistic surrogacy. The term ‘forced labour’ extends beyond conventional notions of physical coercion, encompassing the subtle societal pressures exerted on women within familial structures, such as being compelled to undertake altruistic surrogacy against their genuine desires. This mirrors the coercive influences imposed by market forces on male labourers, thereby implicating the purview of Article 23 of the Constitution.

Beyond the Debate on Altruistic versus Commercial Surrogacy: Towards “Compensated Surrogacy”

Flagging these concerns and advocating for a rights-based approach, the Parliamentary Standing Committee (PSC) report points out that ‘permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary.’ In contrast, the Rajya Sabha Select Committee (RSC) frames surrogacy as an ethically laudable act, divested of commercial motives and imbued with societal service, inquiring ‘whether any price for this noble act of motherhood could be fixed, whether renting out of her womb by a woman for some material consideration could be considered as an ethical practice?’

Central to the discord between the PSC and RSC is the conceptualisation of motherhood. The PSC foregrounds the labour-intensive nature of surrogacy, advocating for compensation as a substantive form of acknowledgment surpassing mere exaltation. In contrast, the RSC extols the altruistic model, thereby perpetuating traditional gendered stereotypes of an ‘ideal’ motherhood paradigm. This article argues that compensation for surrogates transcends mere recognition, it stands as a pivotal mechanism to ensure equity and fairness in a landscape largely dominated by the Assisted Reproductive Technology industry.

Intersectionality and the Ethics of Commercial Surrogacy

Intersectional feminist scholar Alison Bayley critiques the ‘Eurocentric fallacy of choice’ in commercial surrogacy for its oversight of intersectionality and layered inequality that is persistent in the Indian context. In her work, Amrita Pande observes that these women who act as surrogates are often from marginalised backgrounds, and reject the category of ‘choice’, instead emphasizing the notion of ‘majboori’, or compulsion. Prominent Dalit feminists like Sharmila Rege have also drawn parallels between forced labour, sex work and surrogacy – with emphasis more on ‘coercion’ over the choices made by the women involved. In contrast, scholar Sivakami Muthuswamy emphasises on the necessity to respect women’s agency. While acknowledging that the decisions of women to become surrogates may be influenced by coercive pressures arising from their low-income status, it is crucial to underscore that this in itself does not diminish the meaningfulness inherent in these decisions.

Recognising that compensation is not a panacea for coercion, noted scholar Prabha Kotiswaran’s observation finds resonance – coercion pervades various spheres, yet compensation serves as a safeguard against intolerable levels of exploitation. India’s ban on commercial surrogacy and its underlying expectation for women to undertake reproductive labour without adequate compensation is fundamentally unconstitutional. It is the State’s responsibility to broaden women’s choices and enhance informational access without necessitating a proscription. The urgency lies not in engaging with the politicised narratives of commodification or deification of motherhood, rather, in advocating for a rights-based approach that dignifies the inherent labour in the process of surrogacy.

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