Author: Mishika is a BBA LLB (Hons.) student at Symbiosis Law School, Pune.
This article scrutinises the recently introduced Surrogacy (Regulation) Act, 2021 vis-a-vis Labour Laws in India.
Introduction
Historically, women were discriminated against and discouraged from joining the working sector and a natural incidence of the same is the lack of labour laws specifically designed for women. In a time where there was a lack of general labour laws for women, considering that women must be given ‘maternity benefits’ under labour law was far from people’s imagination. The inadequacy and inequity surrounding maternity benefits to women is one of the most widely discussed topics under labour law even in the 2020s.
With the development of modern science and technology, surrogacy was introduced to all those distressed couples who could not for various reasons bear their own child in the natural mother’s womb. Whilst the inadequacy of maternity benefits is still a big question, whether these benefits extend to surrogate mothers is an even bigger debate in India.
Earlier this year, the Surrogacy (Regulation) Act, 2021 (hereinafter ‘SRA’) was introduced which completely bans ‘commercial surrogacy’. This issue of legalization of ‘compensatory surrogacy’ was also raised in the Parliamentary Standing Committee but was rejected. The only ‘stakeholders’ that were consulted during the process were the elite groups of politicians, bureaucrats and healthcare professionals, while completely excluding civil society organisations and marginalised groups who are most substantially affected by these laws.
In this article, the author aims to identify the position of labour law in India with respect to surrogate mothers considering the prime prevailing laws on the subject. The judicial stance on the issue is discussed alongside the constitutional provisions necessitating the inclusion of surrogacy under the benefits of labour law. The article is concluded with providing a few prevailing loopholes that need to be addressed by the legislature in the laws.
Surrogacy: Stance in India
Historically, surrogacy was as big a taboo as sex work in India and it was only in Manji Yamada v. Union of India that surrogacy was beginning to be considered as an ethical practice by some section of the people. It all started with landmark cases like K. Kalaiselvi v Chennai Port Trust and Rama Pandey v Union of India which held that maternity benefits should be bestowed upon adoptive as well as commissioning mothers. Moreover, the courts have recognised the right to motherhood as a fundamental right under Article 21 of the Constitution and the right to full development to every child. It has also been recognised that maternity benefits have two phases: child bearing and child rearing. In other words, maternity benefits include both maternity, i.e., physical pregnancy and motherhood, i.e., child care and therefore, there can be no distinction between a surrogate mother and a biological or natural mother. Even internationally, as per the General Comment 14 to the ICESCR, maternal healthcare is a non-derogable obligation of the state and the state cannot deny any maternity benefits to surrogate mothers.
Surrogacy: A form of Reproductive Labour
Right to work as well as the right to livelihood is a fundamental right recognised under the Constitution under Article 21. Right to livelihood is a facet of right to life because if there is no means of living, the right to life gets directly abridged. Article 39 of the Constitution also provides for the right to livelihood as a Directive Principle.
Additionally, the landmark KS Puttaswamy judgement held that a woman’s decisional and sexual autonomy over her reproductive choice is central to the right to privacy enshrined under Article 21. Article 21 of the Constitution guarantees the right to motherhood to every woman and right to full development to every child. The conjunction of both these rights necessitates adequate maternity rights to let women secure the right to work and livelihood, by exercising their right to bear a child.
Therefore, labour laws for surrogates should not just guarantee maternity benefits like maternity leaves, but also treat ‘surrogacy’ as a form of labour and make laws that prevent its exploitation, for instance, the guarantee of minimum wages and other compensations to surrogate mothers. The next section brings out how the newly introduced SRA goes against these constitutional principles.
Surrogacy (Regulation) Act, 2021
Right to Life- The recently introduced SRA bans ‘commercial surrogacy’ and only provides for what is known as ‘altruistic surrogacy’, which means that the surrogate mother would not get any monetary compensation for her labour (Chapter III, Section 4(ii)(b)). Such non-payment for reproductive labour endorses exploitation and directly abridges the right to livelihood which is enshrined under the right to life under Article 21. Right to salary/wages/payment is also an intrinsic part of the right to livelihood. Any form of labour, including reproductive labour, deserves adequate payment and any law providing otherwise should be considered as unconstitutional.
Right to Privacy– By banning commercial surrogacy, the SRA de facto provides only for ‘close relatives’ or ‘close friends’ of the couple to be a surrogate. It indirectly absolutely restricts a section of women from choosing to earn via surrogacy.
The landmark KS Puttaswamy judgement held that a woman’s decisional autonomy over her reproductive choice is central to the right to privacy. Privacy includes the ability to take vital decisions about one’s life, including aspects like procreation. Such ban on commercial surrogacy is clearly not in accordance with the constitutional tenets and violates the bodily and reproductive autonomy of women that is enshrined under the right to privacy under Article 21 of the Constitution.
Right to equality and Right against Discrimination– Moreover, this also stands in violation of the right to equality and right against discrimination enshrined under Articles 14 and 15 of the Constitution respectively. The restrictions on commercial surrogacy stem from patriarchal mindsets and gender stereotypes that women are the caretakers of the family and that the function of reproduction is a natural birthgiving process in order to take a lineage forward. Many people also compare surrogacy to female dancers and prostitution and look down upon surrogacy as morally and ethically wrong and against the value system of the Indian Society. Such assumptions about gender roles have been made the foundation for surrogacy laws, whilst completely ignoring the fundamental rights of women. Such provisions disproportionately impact women and attempt to control their sexual autonomy, as also laid down in Joseph Shine v. Union of India and Navtej Johar v. Union of India. Such bans on commercial surrogacy only further marginalises women by controlling their decisional autonomy and denying them equality.
Conclusion and Recommendations
Women’s reproductive rights as well as bodily autonomy should be of importance and consideration in surrogacy laws. Moreover, it is equally important that surrogacy be seen as reproductive labour and brought under the labour laws such that a surrogate mother is seen no different from a natural mother. All of these should be done while balancing industrial productivity and worker welfare so that both sides are on a win-win.
Following are some recommendations that must be considered in the Indian Law:
- An explicit inclusion of surrogate mothers must be done under all Maternity Benefit related labour laws to avoid absurdity
- Clarity regarding pre-natal and post-natal maternity benefits in case of surrogacy must be introduced along with the specifications regarding the time period of such benefits to the surrogate as well as to the commissioning mother.
- Clarification on whether the commissioning mother would be entitled to benefits in the event of a miscarriage or birth of a still-born child or medical termination of pregnancy or only the surrogate mother would be entitled to the same, along with the specifications for such benefits.
- Considering the socio-economic situation in India, the chances of exploitation in this sector are high and therefore, the legislature must introduce provisions such as a minimum wage rule.
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