In regulating surrogacy, don't bring in prejudices...

The business of child surrogacy is a problematic one. Questionable ethics, commercial exploitation, specially of poor Indian women and much more. At the same time, it does help those who can’t have children and many families, Indian and from other parts of the world, have used this route to get a child. India has been a leader in commercial surrogacy and “fertility tourism”, mainly because of the low costs involved, specially for those from Western economies. No reliable data exists but some estimates have put it as a $2.3 billion business. Such a vast commercial enterprise needs government regulation at the very least to protect the rights of all concerned. Instead, the government has gone the whole hog and decided to ban it. The new surrogacy bill will allow only “ethical surrogacy” to infertile “legally married couples” and debars singles, foreigners (including PIOs), and NRIs and homosexuals from opting for it. Even live-in partners will not be allowed to go for it. Sushma Swaraj, minister of external affairs, who announced this new proposal, specifically said when asked about homosexuals: “It doesn’t go with our ethos.”

Somewhat gratuitously, she also criticised celebr-ities who have resorted to surrogacy to get a child. So there you have it. This is less about the rights of poor women who lends her womb or the doctors who make money unethically, and more about culture, and worse, morality. Or specifically “Bharatiya” culture as perceived by Ms Swaraj and her party. In the worldview of the Sangh Parivar, not just gays, but also singles and those who commit the cardinal sin of living together, cannot have the same rights as a married couple. The phrase “family values” that is so often used by conservative American politicians would fit perfectly. After all, RSS chief Mohan Bhagwat constantly lectures the nation about the adarsh Indian parivar — in which the woman is either making babies or chapattis, the head of the family (the male) calls the shots. This government’s policy on refugees too is coloured by its cultural philosophy. Hindus from Bangladesh or Pakistan are welcome, but others (i.e. Muslims), even if they are persecuted, (and well may be Indians) are to be sent back.

Those with long memories will recall P.N. Oak, a so-called historian, who used to insist that the Taj Mahal was actually a Hindu temple. In those days he was dismissed as a bit of an eccentric, to put it mildly. But now, in the digital era, a Google search for his name will throw up over 6,40,000 entries, many of them examining his theories in detail. In the current dispensation, he may have been made the head of some research institution. In the same vein, we are now told about ancient India’s prowess in everything from plastic surgery to aviation to missile technology. Much of this is slowly finding its way into textbooks; how can it not, when the highest in the land endorses it. It is, after all, the Indian ethos.

Thus, denying homosexuals the right to have children by surrogacy is simply an extension of denying homosexuality as somehow “un-Indian”. Gays had a short burst of freedom, when Article 377 was done away with, but now they are back to being criminals. How then can criminals be allowed the rights law-abiding citizens have? No one should be surprised if homosexuals are also debarred from adopting children. What this new Bill is going to do is to push the entire business of surrogacy underground. After all, the strictest laws have not been able to prevent the black market in kidneys. The existing infrastructure and the doctors are not going to fold up their tents and vanish simply because the government bans it.

A couple which wants a child desperately will go to any length to get one. Once again it is the poor who will be exploited and now they will have no recourse to justice, because they would be party to a crime. A law to ensure that medical ethics are not flouted and women are not exploited and cheated is a welcome one, but barring specific groups of people from ever opting for surrogacy to get a child is plainly discriminatory. Even worse is advancing a cultural argument to justify these exceptions. It’s high time those in power give up their social prejudices and ensure that all citizens are treated equally.