In Search of Non-tangential Premises

The much anticipated Surrogacy (Regulation) Bill (SRB), 2016 comes as a classic case of deferral, haste and halt, as a disavowal of existing norms that has raised more questions than resolved in its wake. Sure, it marks the government’s maiden, and therefore commendable, effort to separate the legal discourse on surrogacy from the broad sphere of assisted reproductive technology (ART) in the country. But the picture that resurfaces in its wake is bewildering, as the insistence on reforms in surrogacy practices in India has been placated with an embargo on its commercial variety. Equally bemusing is the sole sanction of the altruistic category in surrogacy which, according to its Indian version, shall strictly be defined as a kind of exclusive “kinship surrogacy.”¹

Given the large contrasts in the realities and motivations of principal stakeholders, the issue of legitimising rights and freedom(s) in commercial surrogacy in India has always been under constraint, with successive attempts at its regulation being made since 2008.² However, existing legal–ethical reasoning stands challenged in the face of the SRB’s overhaul of preceding legislative narratives on the viability of best practices that could have determined commercial surrogacy in India. Consequently, an absolute ban is proposed as the justification to eliminate isolated, misconstrued or dispersed outcomes in commercial surrogacy, that might have transpired within an operational vacuum and in the absence of an act proper (that is, an Assisted Reproductive Technology [Regulation] Act or a Surrogacy [Regulation] Act per se as opposed to the ART [Regulation] Bill), when procedures, participants and the resulting contracts were not bound by the condition of legal enforceability. In fact, it would be a terrible oversight to underestimate the corrective capacity of a self-contained legal mechanism that could have focused on commercial surrogacy from a different and a more robust vantage point.