Surrogacy Ban in India: An Utilitarian Perspective

Ms. Parina Muchhala


Abstract

The Lok Sabha recently passed the Surrogacy (Regulation) Bill, which banned commercial surrogacy due to prevalent misuse of the practice and the accruing health threats to surrogate mothers. Nevertheless, this ban has generated an uproar within Indian feminist groups and stakeholders as being an inherently discriminatory legislation violative of their fundamental rights to bodily autonomy, privacy and employment.

This article, premised on finding a jurisprudential justification for bans, tries to understand whether utilitarianism would support the commercial surrogacy ban. The author examines debates within classical and contemporary utilitarianism to achieve this objective.

Classical Utilitarianism: Conflicting ideas?

Jeremy Bentham’s hedonism: Net utility and related considerations

Bentham focuses on ‘greatest happiness of the greatest number.’ For him, utility equals the hedonistic sensation of ‘pleasure,’ and any action which generates maximum pleasure is the ‘right choice.’ Such rightness can be judged based on the intensity, duration, certainty and propinquity (nearness) of such outcome.[i]

Bentham’s idea of utilitarianism, in combination with prevalent social customs during his time would most likely indicate that a ban on surrogacy is required. The Surrogacy (Regulation) Bill is the ‘right choice’ for legislators because it produces the maximum pleasure in society. For a country having 1.3 billion people, welfare of the existing members of society is paramount, which can only be ensured if they have adequate access to resources. An increase in the population through instances of surrogacy will only challenge such access further and create ‘pain.’

The net pleasure obtained by a surrogacy ban is both intense and certain. While the intensity is derived from the vast numbers of people that stand to benefit from better resource distribution, certainty, nearness and propinquity move hand in hand: since the effects of this ban can only be seen in the long run, its propinquity and certainty will also be evident at a much later stage.

Although it may be argued that commissioning parents and the family of the surrogate mother (whose financial worth increases through commercialization) experience ‘pleasure’, the aggregate pleasure that they would collectively obtain is less than the aggregate pain that will be caused by an uneven resource distribution. In absence of a greater net utility, the interests of these stakeholders are not relevant to Bentham’s analysis.

Whilst being an interesting perspective, it is pertinent to note that Bentham’s ideas do not take into consideration the bodily autonomy and dignity of women. Thus, we turn to JS Mill’s idea of ‘liberty’ to explore other utilitarian narratives.

John Stewart Mill and the idea of ‘liberty’

JS Mill advocates utilitarianism as a political philosophy and thus considers the interplay between ‘pleasure’ and ‘liberty.’ He believes that the majority in society imposes a ‘tyranny,’ or restraint on the others to ostracize them. To tackle this, everyone else must be ‘eccentric’ and not give in to the wishes of the majority. This is an inherent right to individual liberty. Further, Mill proposes that a restraint can be imposed only if it follows the harm principle: actions causing harm to someone else (‘other-regarding action’) are the only ones that can be restrained.[ii] Thus, restraints to liberty are to be minimal.

This is where the legislator drafting a surrogacy law in India is at a crossroads: can the opinion of the majority, which is mathematically equivalent to the highest amount of utility, be given a go-by simply to accommodate minorities? There are two lines of reasoning that can possibly be deduced from JS Mill’s writings:

For instance, one could reasonably quote Mill to argue that a woman’s individuality and liberty is best reflected in her right to bodily autonomy, since choices with respect to procreation are intrinsic only to her. They cause no harm to anybody else and are merely self-regarding actions. At best, while these decisions can affect her family, this is not enough to classify such choice as being ‘other-regarding.’ Thus, a ban on surrogacy, whether altruistic or commercial, is completely unjustified.

The second strand of thought is an interesting one borrowing from the backdrop of Mill’s utilitarian writings. Mill was a Victorian scholar who justified British colonisation of ‘backward’ countries like India and Australia through his essays On Liberty and Utilitarianism. Thus, he argued that ‘backward states of society,’ are an exception to the harm principle: every governmental action, whether in the form of an empowerment or restraint, is enacted to ‘develop’ them, and thus cannot be questioned.[iii]

Such argument can effectively be utilised by legislators for arguing in favour of a ban on commercial surrogacy: It may be argued that harsh social realities and the patriarchy (regardless of feminist movements across India) still continue to subjugate women, reducing them to mere ‘backward’ groups in today’s society. To that extent, a commercial surrogacy ban enacted with the intention to prevent exploitation of needier women is most definitely ‘good’ for them and shouldn’t be questioned. The current deplorable conditions of surrogate mothers, pitiably low pay for their services and an absolute lack of concern for their health will only further substantiate this proposition.

Furthermore, although the right to choose to give birth may be a self-regarding action, the phenomenon of giving birth through surrogacy is not. Surrogacy affects the commissioning couple, the surrogate’s family, and sometimes even her own children. Thus, being an other-regarding action which is misused to commodify childbirth and pose health risks to substantial population of Indian women, the same must be banned, regardless of its commercial or altruistic nature.

Contemporary utilitarianism: Equality and equitability

Classical utilitarian theory does not provide a logically coherent justification for enacting bans, at least for Mill. While the same cannot be said for Bentham, his conclusion can be critiqued for being devoid of moral considerations. Contemporary utilitarianism, advocating utilitarianism as the key to ‘justice,’ considers prevalent social realities in its quest to understand the ‘right choice’ for a society.[iv]

Contemporary conceptions of utilitarianism operate on the fundamental belief that utilitarianism is more of an action-guiding approach than a conclusive political philosophy, and must examine, if not include, irrational and selfish preferences of people. Premised on this belief is the Hare-Mackie contemporary utilitarianism debate, one which deserves examination.[v]

For Richard Hare, the presence of an ulterior motive does not impact or reduce the total utility of an action. He believes that utilitarianism is not required to take into account the possibility that preconceived notions, stemming from selfish desires, may impact rights of other human beings. Supplementary considerations, such as non-discrimination on the basis of caste, class, race, gender, etc. are irrelevant as long as the outcome produces the highest possible utility.[vi] Hare’s non-inclusive writings are ineffective to contextualize the surrogacy ban as they presume good legislative intent when laws are drafted, while this is in fact a point of contention against the Surrogacy (Regulation) Bill.

On the contrary, John Mackie argues that once you have a fair share of your own, you have no further moral claim over another person’s rightful share. Thus, the idea of a ‘share’ transcends beyond tangible divisions of property to include intangibles like human rights and non-discrimination. Society must take substantive steps to make people equal before implementing equal distribution.[vii]

Viewing the surrogacy ban from Mackie’s perspective would reveal interesting results. As argued earlier, the practice of surrogacy is intrinsically intertwined with the right to bodily autonomy and dignity, which are indispensable to quality human life. Thus, surrogacy should not be banned at all. The government’s justifications behind the ban are similar to Mackie’s idea of an ‘inherently selfish preference’, based entirely on the government’s inability to protect women from exploitation, and must be discarded. To remedy the situation, he would advocate in favour of a conclusive regulatory framework determining the rights and obligations of every stakeholder associated with surrogacy.

Conclusion

An examination of classical and contemporary utilitarianism reveals interesting and differing results. While Bentham’s non-moral considerations are in favour of a ban on both commercial and altruistic surrogacy, JS Mill’s writings, when analysed in isolation and in conjunction with the backdrop of his writings, lead to different conclusions altogether. In absence of a concrete answer, one turns to contemporary utilitarianism, and it is observed that John Mackie is able to best conceptualize the surrogacy ban. Mackie believes that both altruistic and commercial surrogacy must not be banned, and effective regulatory mechanisms should be established to cater to possibilities of misuse and exploitation of women.


 

Ms. Parina Muchhala is a 3rd year law student at Maharashtra National Law University Mumbai.

 


 

[i] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, BLTC Research, https://www.utilitarianism.com/jeremy-bentham/index.html#four.

[ii] David Brink, Mill’s Moral and Political Philosophy, The Stanford Encyclopaedia of Philosophy, https://plato.stanford.edu/entries/mill-moral-political/#LibPriCatApp.

[iii] Nick Cohen, John Stuart Mill: a racist ahead of his time, Australian Financial Review, https://www.afr.com/lifestyle/arts-and-entertainment/books/john-stuart-mill-a-racist-ahead-of-his-time-20140110-iyarx.

[iv] Will Kymlicka, Contemporary Political Philosophy: An Introduction 10 (2017 Reprint ed., Oxford University Press)

[v] Id.

[vi] Id., at p. 39

[vii] Id., at p. 41

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