Florine Roche
Daijiworld Media Network

Mar 10: It required a Karan Johar to become a single parent of twins through surrogacy for the media to go on a blitzkrieg on the reality about surrogacy, including the Surrogacy (Regulation) Bill 2016. There are many ‘ifs’ and ‘buts’ to this latest Bollywood pot-boiler given on a platter by Karan Johar in real life as compared to what he has been doing in reel life for nearly two decades now. The ‘ifs’ concerning this issue are mainly about the Surrogacy (Regulation) Bill 2016. If the act had become a law when it was to be introduced in April last year then Karan Johar would not have become a parent legally through surrogacy. In other words, Karan has to thank his luck and also the sluggish process of legislation in our country which paved the way for his becoming a single parent without much ado.

KJo, as he is known to his friends, has become a single father exactly 7 months after the union cabinet approved the new Surrogacy (Regulation) Bill 2016. After cabinet approval, the same was introduced in the Lok Sabha on November 21, 2016. The Lok Sabha sent the bill to the Parliamentary Standing Committee on Health in January 2017 and the committee is required to submit its report within three months. Once the bill is passed it will come into effect only after 10 months of notification. In other words it can be said KJo got away with his wish of becoming a parent just by a whisker.

Outspokenness is something KJo is known for and the way he battled the issue of his sexuality by revealing it all in his recently published memoirs titled 'The Unsuitable Boy', mirrors his boldness and personality. Actor Tushar Kapoor also became a single parent through surrogacy a few months back without attracting much publicity. Of course, it cannot be denied that KJo, ‘the unsuitable boy’ of Bollywood has a dedicated fan following and is known as the flag bearer of Bollywood cinema. Naturally, he becomes easy fodder for the media. 

The ‘buts’ of this issue are about how the ‘high society’ people are able to have the best of both worlds because with money they can buy anything - father, mother and even children. The Bollywood trendsetter in this regard was Aamir Khan who had a child via surrogacy as Kiran Rao, his current wife could not conceive though he had two children with his first wife. But it was Shah Rukh Khan’s decision to opt for a child through surrogacy despite having two children, that too, a girl and boy, that drew condemnation and criticism saying it was exploitation of poor women by the celebrities or misusing surrogacy laws. As Union Minister Sushma Swaraj had said, “What was started for convenience became a luxury”. She is right in a way, though many may decry saying her statement as unfair, for obvious reasons.

How surrogacy works

Surrogacy in simple terms means renting a womb to have children when the woman in question is unable to conceive or carry pregnancies due to medical reasons or physical problems. In such cases a willing woman is artificially inseminated with the sperm of the man or the donor whose wife is unable to conceive. This is traditional surrogacy. In gestational surrogacy the doctors may fertilize the sperm of the father or donor sperm and then the embryo may be planted in the womb of the surrogate. The woman then carries the child for the full term and gives birth to the child of the couple. Simply said, surrogacy is when another woman carries and gives birth to a child for the couple wanting to have a child.

Why ban commercial surrogacy?

With India emerging as the nucleus of commercial surrogacy (where a surrogate is compensated for her services in terms of money beyond the medical expenses) for couples from different countries there were incidents of exploitation poor women and ethical issues concerning surrogacy. Surrogacy is cheaper in India as compared to other countries, as many poor women agree to be surrogates for a paltry sum. Therefore couples from other countries were opting for India to become parents through surrogacy. As such there were incidents of immoral practices, exploitation of poor surrogates, abandonment of children, racket of intermediaries exploiting women and celebrities and rich misusing the commercial surrogacy and such other issues.

Social activists and concerned citizens also began pointing fingers at the celebrities and high society people who could afford surrogacy using a poor woman as a surrogate. In Shah Rukh’s case though he had two children, a boy and a girl, he opted for surrogacy even when he is married to Gowri, the mother of his two children. Apart from Shah Rukh, Aamir Khan, Sohail Khan, and Tushar Kapoor are some of the Bollywood celebrities who opted parenthood through surrogacy. There were reports of widespread condemnation of commercial surrogacy which was highlighted by the Indian media from time to time calling for prohibiting commercial surrogacy and allow only altruistic surrogacy. The recommendation of the 228th report of the Law Commission of India to prohibit commercial surrogacy hastened the process of regulating surrogacy through enactment of suitable legislation. The government was therefore forced to come up with Surrogacy (Regulation) Bill 2016.

Surrogacy (Regulation) Bill 2016

The Bill prohibits commercial surrogacy, which includes stopping foreigners from commissioning surrogacy in India, while making it illegal for single parents, gay couples and those in live-in relationships to opt for surrogacy. All infertile Indian married couple who want to avail ethical surrogacy will be benefited. Further the rights of surrogate mother and children born out of surrogacy will be protected.

The major benefits of the Act are that it will regulate the surrogacy services in the country. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfilment of certain conditions and for specific purposes. As such, it will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

The Surrogacy (Regulation) Bill of 2016 not only bans commercial surrogacy but also does not allow homosexual couples, people in live-in relationships and single individuals from having a child through the 'rent-a-womb' method. As per the draft law, only childless Indian heterosexual couples married for a minimum five years and with proven medical problems are eligible for surrogacy. The union cabinet cleared the draft surrogacy bill on August 24, 2016 aimed at making surrogacy laws more transparent. The bill was introduced in the Lok Sabha on November 21, 2016 by Minister of Health and Family Welfare J P Nanda. Now the bill is with the Parliamentary Standing Committee and will soon become a law.

The pros and cons

The bill has also generated lot of interest and argument because puritans believe that surrogacy is against Indian ethos and moral values and should not be encouraged. External Affairs Minister Sushma Swaraj gave a strong narrative when she had said ‘surrogacy is against Indian ethos. We do not recognise homosexual or live in relationships....”. There is also the issue of commissioning parents abandoning one of the babies in the event twins are born. On the other hand there are a sizeable number of people who believe that the new bill deprives genuine infertile couple from having children through surrogacy. It is also argued that the bill violates the Fundamental rights of the people to choose mode of parenthood. However, to protect the fundamental rights of some the fundamental rights of others can be violated or overlooked. It is also said that the bill does not target ‘commercialisation of surrogacy’ but deals only with ‘commercial surrogacy’ thus depriving willing women to become surrogate and get compensated.

Roohi and Yash – the fraternal twins born to Karan through surrogacy in February this year have attracted eyeballs and lot of space both in the social, print and television media. This may be because of his Bollywood connection and celebrity status and also because of his now open-secret sexual orientation, which he makes no bones about. The fact Indian people’s fixation with Bollywood stars and their private lives has also has much to do with the kind of prime space in the media given to announce Karan Johar’s parenthood. At the same time it can be said that KJo has broken certain myths and perceptions about single parenthood with his bold move, as some ardent opponents of the proposed new regulation to surrogacy in India point out.

But the bigger question at the moment is whether KJo incident has given a new twist to the entire issue by waking up the sleeping giant of surrogacy. As per the new bill it is illegal for homosexuals or single individuals to become parents through surrogacy. Karan's parenthood has certainly stirred up a hornet’s nest. Before the bill is passed and within the gestation period of 10 months once the law comes into effect there will be a mad rush of gay people and single individuals to become parents through surrogacy. All may not be as lucky as Karan and Tushar. But it all depends on how long the government will take to pass the bill. Knowing the tardy legislative process in our country many more will be able to pip the bill to the post and fulfill their wish.