Ed Note: As part of our New Scholarship section, we have been inviting discussants to respond to the public law themed articles featured in Volume 5 the Indian Law Review. You can access all the posts in this discussion here. In this post, Chayanika Shah responds to the arguments made by Sneha Banerjee and Prabha Kotiswaran in their paper titled “Divine labours, devalued work: the continuing saga of India’s surrogacy regulation”. You can access the article here and the summary of the Paper here.
Sneha Banerjee and Prabha Kotiswaran have made an important contribution to the debates around legislative interventions around surrogacy in India through this well argued and detailed analysis of the Surrogacy (Regulation) Bill, 2019. In addition, they have also put down cohesively the muddled trajectories of regulation of surrogacy and assisted reproductive technologies in India over the last decade and a half. Mapping this along with the feminist reactions and responses to these processes, they have given the readers a comprehensive account of the current status of the process. This is no easy task considering that this has been a long and convoluted process in which at different times guidelines, policies and law-making have all contributed. There have been major shifts and turns as the industry that promotes assisted reproduction has thrived and grown.
At the outset, the authors state their own position vis a vis surrogacy. They consider this choice as a possibly conscious decision on the part of the woman albeit within unequal conditions of capitalist patriarchy and with the possibilities of exploitation due to the massive power imbalance in which women opt for such ‘affective technology-abled labour’. They also clearly state that they are against blanket bans and prohibitionism that do not take into account people’s lived realities. The paper then goes on to analyse the final version of the surrogacy bill tabled in the houses of parliament and presents a Constitutionally grounded case to show how it is discriminatory to various people including the surrogates themselves. It also raises adequate questions on the difficulties of implementing it along with the confusion that the overlapping structures and provisos in the The Assisted Reproductive Technology (Regulation) Bill, 2020 (ART Bill, 2020) create for both the Bills.
In addition to what the authors have said, I would like to emphasise that the ART Bill and the Surrogacy Bill need to both be looked at together and if this is done the Surrogacy Bill shall have to be redrafted. I make a case for this by looking at the following two additional points by way of complementing the analysis in the paper.
- Lay out the conceptual framework within which I would like to place this whole debate.
- Use this framework to clarify what and who needs to be regulated so that the fallacy within these bills is rectified.
- The Conceptual Framework:
Feminists believe that all people, particularly cis women need the right to make their decisions about their lives rather than others taking those decisions for them in the name of protecting them and their ‘divine’ powers. This needs to be said at the outset because surrogacy, like sex work and dancing in bars, has been seen by the State and the powerful forces in society as exploitative per se. Hence its regulation is dismissive of any claim that any woman might make to monetise their reproductive labour. This is evident in the way altruistic surrogacy is being promoted and in fact even deified.
Infertility in itself is a complex issue constituted by biological and social realities. One way to understand it is the way in which both the ART Bill and the Surrogacy Bill have done – “Inability to conceive after X years of unprotected coitus or other proven medical condition preventing a couple from conception”. The couple here could be any two persons in which one person has the ability to transfer gametes into the other in a way that conception can happen and the other person has the ability to allow this conception and can also carry it to a full term pregnancy.
The technology that these bills are regulating and the labour of surrogates actually could also help many others who are differently infertile. Persons who may want to experience genetic parenthood without necessarily going through coitus, protected or unprotected; homosexual people who may want to have children as a couple but find that there is no way that they can do that because they may not have bodies that allow for the process of conception and/or carrying through the pregnancy. So in principle, assisted reproductive technologies and surrogacy can address different kinds of infertilities.
Yet, in both the bills the couple in the imagination of the lawmakers is purely the cis-heterosexual married couple and both the bills make sure that this married couple gets a genetic child. As I read through the Surrogacy Bill of whichever year and the ART Bill, 2020 I read a clear will to make a law that preserves this social understanding of who can have genetic children. It, in fact, actively prevents the use of technology to subvert some of the dominant social norms around parenthood, thereby actively heteronormativising society. Not only is this in direct violation of the apparent legal acknowledgement and visibility that has come for queer and trans lives since NALSA 2014 and Naz Foundation 2009 and Navtej Johar 2018, it is also an active act of reasserting patriarchies in their most archaic forms. An extremely diabolical anti-feminist project of the State executed in the name of protecting the exploitation of women and children! And that is why from the very beginning the regulation of ARTs has been merging the regulation of technology with the regulation of people accessing the technology.
- Who is to be regulated
There is a need to regulate technology providers, to make sure that they meet some basic standards in their clinics and in their management of the procedures. Since all procedures are being done for exchange of money it is also important that unnecessary procedures are avoided, that utmost care is taken with the kinds of experimental technology and medication that is used. So yes private providers of this technology need to be regulated. The person accessing an ART procedure because they are bearing the child for themselves, their spouse or for someone else, should ideally not be a concern of the medical practitioner and not part of the regulation mechanism. Who does this reproductive labour for whom and in what circumstances are social contracts and these should not be part of medical procedures. So we clearly need two separate legislations. One for regulating technology and its providers and one for these allowed social contracts.
Marriage seems to be one such social contract that allows a person to access the technology. Can couples who are not married, who cannot be married and who are deemed unfit to marry access these technologies is not something that can be fixed by the laws regulating ARTs or surrogacy. Since there is also a child involved, it will follow the law of the land (however lopsided they may be) around guardianship and adoption. Changing these norms will require changing those laws and that is a separate legal tangle.
The only new angle that we have with ARTs is that there could be a commercial or non-commercial transaction that can happen with the aid of ARTs wherein a person could contribute their gametes to someone else or also offer to carry a full term pregnancy for someone else. To be able to do this there is a need for legal protection for all those involved – the person(s) providing the gamete and/or the labour, the person(s) desirous of having the child, and most importantly the rights of the child born out of such a transaction. Each of these people’s rights need to be protected. And that is what we need a law for. If the legislation for surrogacy is where this is to be done, its purview has to be expanded to gamete donors and their rights much like the ART regulation needs a separate section for gamete banks and their regulation.
Both the bills have been made without any such clarity. Their muddled character and confused journey has today led to some clinics being called ART clinics and others ‘surrogacy’ clinics. What is it beyond providing ARTs that the surrogacy clinics will do. Why do they need a separate name and procedure is beyond any cogent explanation. If and only when the separation is done with a logical consistent understanding will these difficulties be addressed.
More importantly, it is only when this complete separation of the two bills is done that the rights of all people accessing ARTs for their need for a genetic child will be really articulated and understood. Only then will we be able to talk of how the rights of the child born will be protected. Currently, as rightly pointed out in the paper, there is a prohibition for abandoning, disowning and exploitation of the child in the proposed law. If such proclamation alone could protect a child we would have much less violence in this society. Clear safeguards have to be put in place to protect the rights of the child as a primary concern of the bill. The parent(s) of the child’s rights and of those providing the labour also can then be thought of in greater detail. For example, can there be a way to think of ensuring the rights of all people and allow for non-gestational surrogacy as well because that would mean much less medical risk to the surrogate who is of proven fertility as she can opt for simpler ART procedures.
And a very crucial point as I close. All through this response, I have tried not to use ‘woman’ for the surrogate unless I meant to speak of ‘women’. I do this because we need to be cognisant and respectful of the fact that there may be many bodies that could carry a child but not take on the gender identity woman. I was shocked to see that there is a clause in the ART Bill 2020 that shows that the lawmakers are also aware of this to some extent but use it to actually discriminate against a certain section of people that they apparently claim to protect through another legislation.
I am referring to clause 33 (1) (e):
33 (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person shall not: … (e) transfer human embryo into a male person or an animal
An embryo cannot be transferred into the abdomen. It needs a uterine environment to nurture and grow it. This could be present in male persons with intersex variations who may have a uterus or with trans men who may choose to not have hysterectomies. This explicit prohibition in fact clearly discriminates against these persons’ rights to have a child using ARTs. And to add to that clause ‘…or an animal’!!! Just brings back the memories of section 377 which did something similar around different sexual desires.
Made with such discriminatory mindset, both these bills need to go back to the drafting table. They are flawed in their logic, discriminatory in their approach and in the name of protection of women and children actually police them through reasserting heteronormative patriarchies.
Chayanika Shah is a teacher, educator and gender studies researcher based in Mumbai. Along with teaching Physics to undergraduate students, she has campaigned, researched, taught, and written on feminist studies of science, the politics of population control and reproductive technologies, communalism, gender studies, sexuality and sexual rights. Her published books include: “Space, Segregation, Discrimination: The Politics of Space in Institutions of Higher Education” published by Yoda Press this year; “No Outlaws in the Gender Galaxy” published by Zubaan, “Bharat ki Chhaap” a companion book for the documentary of the same name and “We and Our Fertility: The politics of technological intervention”.
 All people whose gender assigned at birth matches the gender that they identify with are cis people. Since only two genders are assigned, we just have cis women and cis men. Similarly all those whose gender does not match with their assigned gender are loosely clubbed under the name of trans people. Obviously trans people name their genders in multifarious ways including ‘man’ and ‘woman’.
 The number of years varies in different versions of the bills between 1 and 5 years and there seems to be no logic by which this is determined.
 As a queer person, for me the notion of family is very flexible. Children are not necessarily a part of that imagination but care and nurture is. Even if there are children they need not be those with genetic continuity with other members of the family. However, all queer people do not have the same notion of a family. I recognise that for those that I would term these people as also being infertile, due to bodily and/or social reasons.