The Parliamentary Standing Committee on Health and Family Welfare’s recommendations on the proposed legislation surrogacy reflect the kind of progressive thinking policy-making in India needs. The 31-member panel, with 12 from the ruling BJP, favoured allowing single persons, live-in couples, divorcees, widowed(-red), and homosexual persons to become parents via surrogacy while the original Bill only kept that window open for Indian heterosexual couples who had been married for at least five years and were childless. Not only is the ‘waiting period’ inconsistent with the WHO definition of infertility—failure to conceive even after a year of unprotected coitus—narrowing of the eligibles would mean that many who desired and were otherwise qualified to be parents would have had a sure route to parenthood closed. Many would argue that adoption is just as fine a route. But adoption too comes with its own set of restrictions, and approval can be a painfully long-drawn process.
The panel was also critical of the provisions that made surrogacy ‘altruistic’ and limited the option of the surrogate to a close relative of the couple. This, as the panel argues, ignores the reality of patriarchy in India. The close-relative clause meant that women could be pressured by families to bear children for relatives even when they don’t want to, and get nothing in the bargain. Instead, letting surrogacy be commercial while capping the number of times a woman can be a surrogate to one could have helped legalise what is already happening under the radar of the law in many states in India. Legal commercial surrogacy would mean that a woman who carries a child for others gets something out of the endeavour whereas the proposed law in its original form would encourage unchecked, illegal commercial surrogacy.