Surrogacy in India: Navigating rights, inclusion, and child welfare
This article is authored by Ranjana Kumari, director, Centre for Social Research, New Delhi.
The recent Supreme Court (SC) ruling on an unmarried woman's plea for surrogacy has ignited a firestorm of debate, reigniting vital conversations about parenthood, reproductive rights, and the complexities of navigating societal norms within the legal framework. This decision, while shedding light on existing legislation, underscores the urgent need for a more inclusive and individual-centric approach to surrogacy in India.
India's legal landscape has seen significant shifts with the Surrogacy (Regulation) Act, 2020, aiming to curb exploitation and ensure child welfare. However, the Act's exclusion of unmarried individuals, same-sex couples, and foreigners has raised concerns about discriminatory practices and limited access to reproductive options.
The SC's denial highlights the challenges faced by individuals outside conventional family structures. While prioritising child welfare and marital sanctity holds merit, it necessitates a nuanced approach that considers individual circumstances and rights. Research from the National Family Health Survey (NFHS-4) reveals that approximately 20% of Indian households are headed by single parents, dispelling the myth of a monolithic family structure. Denying surrogacy access based solely on marital status overlooks these diverse realities, perpetuating stigma and discrimination.
The law must adapt to evolving societal norms, upholding principles of equality and individual autonomy. While the 2020 Act aims to safeguard vulnerable parties, it must ensure equitable access to surrogacy services irrespective of marital status, age, or sexual orientation. Aligning with international practices and acknowledging diverse family structures are crucial steps towards a more inclusive and compassionate framework.
Expanding the discourse, we must recognise the potential benefits of surrogacy for individuals and couples facing infertility, same-sex couples, and those choosing alternative family paths. Restricting access based on marital status or sexual orientation risks further marginalising these populations and denying them the right to experience parenthood.
However, the conversation doesn't end there. Ethical considerations extend beyond intended parents to encompass the rights and well-being of surrogate mothers and children born through these arrangements. Regulations must ensure the protection of all parties involved, upholding informed consent, fair compensation, and safeguarding the dignity and autonomy of surrogate mothers.
It's crucial to address the socio-economic factors influencing women's decisions to become surrogates. Many, particularly from marginalised communities, may choose surrogacy for financial support. Any framework must guarantee their rights and ensure they aren't exploited or coerced.
In light of these complexities, policymakers, legal experts, health care professionals, and civil society organisations must collaborate to develop comprehensive regulations that balance the needs of all stakeholders. Extensive consultations with surrogate mothers, intended parents, advocacy groups, and medical professionals are essential to ensure a fair, inclusive, and reflective framework.
Ultimately, the goal of surrogacy regulations should be to promote reproductive autonomy, protect the rights and well-being of all individuals involved, and ensure ethical and responsible practices. By fostering a supportive legal and social environment, India can empower individuals and couples to build families according to their wishes while upholding principles of justice, equality, and human rights.
To conclude, I would like to highlight the Recommendations from Centre for Social Research Studies on Surrogacy:
- Include in-depth studies: Incorporate research exploring the experiences and perspectives of surrogate mothers, intended parents, and children born through surrogacy arrangements, particularly from diverse backgrounds.
- Focus on socio-economic factors: Analyse the economic and social factors influencing women's decisions to become surrogates, including their vulnerabilities and motivations.
- Evaluate international practices: Conduct comparative studies of international surrogacy regulations, examining their effectiveness in balancing the rights and interests of all involved parties.
- Monitor implementation: Regularly assess the implementation of surrogacy regulations, identifying potential gaps and areas for improvement.
- Promote public awareness: Raise awareness about surrogacy, addressing ethical considerations, legal frameworks, and the lived experiences of individuals involved.
By incorporating these recommendations emerging from two pioneering research conducted by Centre for Social Research in Surat, Anand and Jamnagar in Gujarat and Delhi and Mumbai , the major hubs of surrogacy (supported by the ministry of women and child development and the National Commission for Women) policymakers can develop a more informed and comprehensive approach to surrogacy regulation in India, ensuring a future that respects individual rights, protects vulnerable populations, and upholds the well-being of all stakeholders involved.
This article is authored by Ranjana Kumari, director, Centre for Social Research, New Delhi.
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