Why Supreme Court must look into Compensation for Surrogates

Since the enforcement of the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (Regulation) Act, 2021, several concerns have emerged, particularly regarding the prohibition on payments to surrogate mothers. These concerns are currently being challenged in the Supreme Court for their constitutional validity. The debate centers on whether the prohibition on payments to surrogates adequately addresses potential exploitation and if it properly compensates the labor involved in surrogacy.

Concerns with Prohibition on Payments

• Legal and Ethical Issues: The Surrogacy Act prohibits any form of payment to surrogates, limiting compensation to medical expenses and insurance coverage. This prohibition may exploit surrogates by undervaluing their labor and failing to address the power imbalances between surrogates, commissioning parents, and clinics.
• Impact on Surrogate Mothers: Historically, surrogate mothers received payments for their services, which has been replaced by the altruistic model where compensation is limited to expenses and insurance. The argument that this prohibition equates to a form of child sale has been debated. Additionally, the disparity in how surrogate labor is valued compared to other medical and legal professionals involved raises concerns about fairness and recognition of the labor involved.
• Parliamentary Recommendations: Prior to the Act’s enactment, the Parliamentary Standing Committee recommended allowing "reasonable compensation" beyond just medical expenses. It suggested compensation for lost wages, psychological counseling, and other support for surrogates. This recommendation reflects the recognition of surrogacy as a significant labor and suggests that fair compensation should be provided to avoid exploitation and ensure ethical practices.

Fallout of the Act

• Underground Practices: The prohibition has led to instances where surrogacy arrangements go underground, with reports of illegal surrogacy rackets. This suggests that while the law aims to regulate surrogacy, it may inadvertently push practices into exploitative environments.
• Struggles in Surrogacy Arrangements: The shift has made it challenging for intending parents to find willing surrogates.
• Supreme Court’s Role: The Supreme Court’s examination of these issues will be critical in determining whether the prohibition on payments adequately addresses concerns of fairness and exploitation. The Court’s decision will impact the future regulation of surrogacy and ensure that surrogates are fairly compensated for their labor.

Practice Question

Evaluate the implications of the prohibition on payments to surrogate mothers as prescribed by the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (Regulation) Act, 2021.