Motherhood, Reproduction and Surrogacy: A Feminist Perspective

सार

The term ‘motherhood’ in Indian law has been used as a universal, self-evident term instead of a term that is subject to contestation. With the arrival of “assisted reproductive technologies”, and thus the practice of surrogacy, courts and legislators have been faced with a question feminist scholars have been considering for decades: who owns the reproductible body, and who decides what a family is? This paper looks at the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021 through the lens of feminist jurisprudence, and at the same time, asks what liberal, radical and socialist and intersectional feminist critiques of the commercial surrogacy boom that preceded these statutes say about the laws. The paper seeks to use doctrinal interpretation of the constitutional provisions, statutory text and Supreme Court and High Court interpretations to argue that India transitioned from a commercial market without regulation to a narrow altruistic model of commercial market, resolving one problem, the visible exploitation of poor women’s bodies but also raising up others a paternalistic gatekeeping regime which excludes single men and unmarried women outside the narrow definition of widow-divorcee, and same sex couples entirely. A comparative analysis of the United Kingdom, the United States, Canada, Israel and Ukraine places India's altruism-only approach as an outlier and not as a universal standard. The paper argues that a rights-based reproductive justice framework is the more constitutional route to take, and suggests some specific reforms which could include consent, compensation and inclusion.

Keywords: surrogacy, reproductive autonomy, feminist jurisprudence, bodily integrity, Article 21, Surrogacy (Regulation) Act 2021, reproductive justice, commodification.