Context: The Surrogacy (Regulation) Act, 2021, along with the Assisted Reproductive Technologies (Regulation) Act, has sparked several concerns regarding its constitutional validity. The core issues involve the prohibition of commercial surrogacy and the limitations imposed on payments to women acting as surrogates. The ongoing Supreme Court cases challenge aspects of the Act, focusing on ethical, legal, and medical dimensions.
Relevance: General Studies Paper II (Governance and Social Justice)
Mains Question: Analyze the ethical and legal implications of the Surrogacy (Regulation) Act, 2021, particularly focusing on the prohibition of commercial surrogacy and compensation for surrogates.
- Prohibition of Commercial Surrogacy:
- The Surrogacy Act, 2021 bans commercial surrogacy, prohibiting any form of payment or compensation to women acting as surrogates, except for medical expenses and insurance. This provision is intended to prevent the exploitation of poor and vulnerable women, but it has raised concerns about the financial burdens placed on surrogates.
- The Jayashree Wad vs Union of India (2016) case had earlier sought a prohibition on commercial surrogacy, which influenced the eventual legislation. However, the lack of detailed examination of how women who act as surrogates are affected has left significant gaps in addressing the real-world challenges of those involved.
- Ethical and Legal Concerns Regarding Compensation:
- The 2016 Rajya Sabha Standing Committee Report on surrogacy highlighted the ethical issues surrounding compensation. It argued that prohibiting payments could lead to exploitation by intermediaries (clinics and agents) who could coerce distressed women into unpaid surrogacy arrangements.
- Another argument raised against payment is that it could amount to the sale of children, a concern addressed by the Act through detailed guidelines on payment schedules during pregnancy. However, many still question whether the compensation allowed for medical expenses is sufficient to support the needs of surrogates.
- Balancing Altruistic Surrogacy with Surrogate Rights:
- The current law only permits altruistic surrogacy, where surrogates are expected to provide their services out of goodwill without receiving any financial benefit beyond necessary medical costs. Critics argue that this approach overlooks the surrogate’s rights, especially those of women from marginalized backgrounds who often undertake surrogacy due to financial struggles.
- The prohibition of compensation has also raised concerns about whether women entering surrogacy are truly willing participants or coerced by their economic circumstances. There is also ambiguity about the role of intermediaries, with some intermediaries being accused of exploiting surrogates under the guise of altruism.
- Medical and Psychological Concerns:
- Surrogacy involves invasive medical interventions, which carry significant physical and psychological risks. By not providing sufficient compensation, critics argue that the Act places an undue burden on surrogates, who often lack access to long-term medical or psychological support after the birth.
- Parliamentary Committees have recommended that surrogates should receive “reasonable compensation” for the risks involved, such as emotional trauma and health impacts. Additionally, there is a need to regulate the involvement of clinics and hospitals, which could exploit the current loopholes for profit.
Additional Data:
- 2016 Standing Committee Report: Highlighted the potential exploitation in surrogacy and recommended better compensation models.
- Altruistic Surrogacy: Currently, surrogates in India can only be reimbursed for medical costs and must be a close relative of the intending parents.
Conclusion:
The Surrogacy (Regulation) Act, 2021 aims to protect women from exploitation but faces criticism for not adequately addressing the needs of surrogates, particularly regarding compensation and medical risks. While prohibiting commercial surrogacy addresses ethical concerns about commodification, there is a need for closer examination of payment structures and the safeguarding of surrogate rights. A balanced approach, ensuring both ethical integrity and fair compensation, is crucial for the success of surrogacy regulations in India.
