On December 19, 2018, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2016. The Bill was cleared by the Cabinet, and subsequently referred to a Parliamentary Standing Committee (Health & Family Welfare) before its passage.
What Is Surrogacy?
Surrogacy is an arrangement, often legally backed up, where a couple commissions a woman (called a surrogate) to carry their child until birth.
Is Surrogacy Inherently ‘Bad’?
No, of course not. It is permitted in certain countries such as Russia and Ukraine. However, surrogacy is banned in certain countries such as Canada and France. Conventionally, the practice of surrogacy has been looked down upon. However, it has a number of advantages for all those who are involved, from the intended parents to the surrogate mother.
In case of traditional surrogacy, the surrogate mother is surgically inseminated with the father’s sperm, thereby making the surrogate mother the child’s biological mother. However, with gestational surrogacy, one or both parents can be biologically associated with the child.
Unlike popular belief, the intended parents can experience different stages of pregnancy, from the embryo transfer to the baby’s birth. They can interact with the surrogate mother and develop a bond with her. Surrogacy does not place the intended parents at an emotional disadvantage.
Surrogacy is a better alternative to adoption because it is subject to lesser restrictions than adoption. Often, the intended parents cannot access adoption due to several agency restrictions on factors like age.
Surrogacy also has a higher rate of success as compared to fertility treatments for intended parents because surrogate mothers have already carried other pregnancies and have a physiologically prepared uterus.
The process may be beneficial for mothers who have formerly suffered from trauma or miscarriages. There is another benefit as well. Pregnancy often leads to Postpartum Depression (PPD), a form of clinical depression that occurs after childbirth, which can be avoided through surrogacy. Especially in case of mothers who have had a child before and suffered from PPD, another pregnancy can be terrifying because there is a 30% chance that you will have it again. This can certainly reduce the joy of parenthood.
Moreover, the surrogate mother is not at a disadvantage either because, in cases such as gestational surrogacy, she is less likely to develop a bond with the baby for there to be any emotional ramifications. Added to that, a surrogate mother has probably experienced pregnancy before and is, therefore, more mentally prepared to bear a child.
What Does The Surrogacy Bill Entail?
The Bill attempts to regulate the process of surrogacy in India, thereby prohibiting commercial surrogacy (commercial surrogacy refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses and provided a minimal insurance coverage). It allows and supports altruistic surrogacy (where a surrogate mother agrees to gestate a child for the intended parents without being compensated monetarily in any way—in effect, free surrogacy) to Indian married couples who cannot bear children.
The Bill mandates that the surrogate mother and the intended couple must be close relatives.
As NDTV reports, the surrogate mother and the intended couple need eligibility certificates from the appropriate authority.
The Bill allows only Indian citizens to avail surrogacy. Foreigners, non-resident Indians, and persons of Indian origin are banned from seeking surrogate mothers in the country.
Gay, lesbian, and trans people, single parents, and live-in couples, are also not allowed to have children via surrogacy in India.
Couples that already have children will not be allowed to opt for surrogacy, though they would be free to adopt children under a separate law.
Now, the discourse about commercial surrogacy has long been controversial and ethically problematic. Feminists, bioethicists, and a number of medical professionals have argued that it is immoral to capitalise on women’s reproductive capacities. They believe that monetising pregnancy will commodify babies leading to the dehumanisation and devaluation of women and children, and also act against social values.
Back in 2016, Anupriya Patel, Union Minister of State for Health and Family Welfare, told Down To Earth, “People often say that surrogacy is a woman’s conscious choice. Our stand is that it is a very wrong notion of the family to use the woman’s body to make money. Is she a child-producing factory? In many cases, we have found that family members coerce women into taking up surrogacy.”
This explanation applies to altruistic surrogacy as well, even more so because in case of altruistic surrogacy, the woman is not even compensated. Added to that, a majority of women decide to take up surrogacy willfully, for the remuneration.
Down To Earth recorded the story of a 28-year-old surrogate mother from Anand district, Gujarat:
“With the help of surrogacy, I earned Rs 600,000 in April, 2015, and bought a house for my family. Earlier, we were living in rented room. My husband is an auto-rickshaw driver, and I have two daughters. We want to educate our daughters and help them live a dignified life. And to achieve this, I may need to go for surrogacy again. My husband’s earning is not even sufficient for food and clothing. Except surrogacy, I don’t think I have any other option.
I know many families who, if they don’t opt for surrogacy, will have to go to sleep hungry. In many families, the male members are not able to get job; some are drunkards. I also know families, where members are sick, and the women have to come forward and opt for surrogacy to treat them.”
This is the story of a lot of women across India, and such real stories are exactly why we should be questioning the legitimacy of this bill.
Here are a few questions that we should be asking.
1: Will A Ban On Commercial Surrogacy Really End The ‘Trade’?
Instead, infertility clinics find legal loopholes or move surrogate mothers across borders. These activities expose surrogate mothers to great risks. Commercial surrogacy cannot be eradicated by placing a domestic ban on it. An article that appeared in The Conversation noted that:
“[W]hen India first banned surrogacy for gay couples in 2012, various infertility businesses in Delhi continued to sign on gay clients from all over the world […] To avoid the ban, infertility clinics moved surrogate mothers across international borders into Nepal […] This emerging trade route between Delhi and Kathmandu halted when an earthquake hit Nepal on April 25, 2015, killing 8,000 people and injuring more than 21,000. While various governments airlifted babies belonging to their citizens, the fate of the Indian surrogate mothers and how they got back home remains unclear.”
This kind of illegal activity is nearly inevitable if commercial surrogacy is banned. It will place surrogate mothers in dangerous situations that lie beyond the scope of law enforcement and beyond the knowledge of the Government. Thus, it is very difficult to ban commercial surrogacy the way this verdict attempts to. All it does, is ban legal commercial surrogacy.
Then, there is also the case of IVF and recruitment of surrogate mothers from other countries who were then implanted with the embryo in Mumbai by an infertility specialist, and then flown back to their own country. This is a loophole because in this manner, the ‘practice’ of surrogacy goes on, in the absence of Indian surrogate mothers and Indian intended parents.
With a ban on commercial surrogacy, India could end up in a condition similar to that of Cambodia. In Cambodia, revealed The Conversation, “surrogate mothers from Phnom Penh are being sent to Bangkok, Thailand to deliver babies. Thai law bans commercial surrogacy transactions, but enforcement agencies are unable to distinguish surrogate mothers in hospitals from other pregnant women. Cambodian surrogate mothers are also being sent to Laos, where there are no laws, to deliver babies in clinics staffed by Thai doctors who once worked in Thailand when commercial surrogacy was still legal there.”
Evidently, all that a ban accomplishes is uproot the trade from one country and plant it in another. Also, illegal surrogacy has already grown to become a $2 billion industry, banning it will push it further underground and only contribute to the illegality of it all. It will create an international problem thereby widening the scope of commercial surrogacy and only benefiting the process. The problem with this is, it aggravates the presence of commercial surrogacy by not just taking it outdoors (out of the concerned country), but also by placing the lives of the surrogate mothers on slippery ground. It therefore, becomes an illegal trade which is difficult to monitor for the domestic government and evidently, does not contribute positively to the country’s global image. Furthermore, this makes surrogate mothers very vulnerable because of their helplessness. The surrogacy agencies provide housing and health facilities, and regulate their income. The lives of women become uncertain and powerless because they cannot terminate their contract upon their will. They are dependent on the agency. Additionally, because it is an illegal trade, they cannot seek legal remedy for any kind of abuse, financial issues, or medical malpractices, and in a new country, they are not in a position to object to the procedures adopted by the surrogacy agency.
2: If A Ban Is Not The Answer, Then What Is?
The alternative is heavy regulation of commercial surrogacy, quite contrasting to the consequences of the ban. Supporting surrogacy with proper screening, adequate documentation, and strict selection of cases in a supervised environment would have been more considerate, in comparison to a ban which is a very extreme step.
Further, an actionable solution would be proper legislation to regulate surrogacy, which the government has stated in the Surrogacy Bill that provides for the formation of a National Surrogacy Board, State Surrogacy Boards, and appointment of appropriate authorities for the regulation of the practice of surrogacy. Surrogacy clinics should be licensed, authorised, and audited. However, adopting these measures and banning commercial surrogacy are two steps in opposite directions. In order to judiciously utilise these provisions and facilities, we should be permitting commercial surrogacy.
Even the arguments that oppose surrogacy from the sociological perspective can be easily debunked with a simple change in the social perception of surrogate mothers, which is not being brought about by replacing commercial surrogacy with altruistic surrogacy. Surrogate mothers should be treated as complete human beings who have the right to know who the intended parents are, the right to choose how they get pregnant, the right to determine which contracts they sign, the right to refuse cesarean surgeries, and the right to maintain contact with the babies they birthed. As long as the bodily autonomy, integrity, and dignity of surrogate mothers is respected, commercial surrogacy should remain a permissible act. This, can again be achieved with an appropriate degree of government intervention and formulation of comprehensive contracts.
A prohibition of commercial surrogacy is a glaringly regressive move considering that India has had some very progressive legal reforms in the previous year.
Hence, the answer is definitely not prohibition. The answer is regulation. But, of course, a ban is an easier way out because stricter regulation demands better legislative machinery and infrastructure. Ban culture, as a whole, is a convenient escape from accountability, on part of the government. A ban on surrogacy shifts responsibility and repercussion, from the government to the people.
3: Why Is It Necessary For The Surrogate Mother To Be A Close Relative Of The Intended Parents?
Surrogacy requires carrying a baby for nine months and not many close relatives will be willing to go that length. The proposition of only allowing close relatives to be surrogate mothers is myopic to say the least, since altruistic surrogacy will only restrict the scope and benefits of surrogacy.
4: Is Altruistic Surrogacy Any Better?
The idea that commercial surrogacy is exploitative is a myth, because it views surrogacy from the lens of medical exploitation only. It is crucial to note that commercial surrogacy is simultaneously, a source of income for many unemployed women.
And, altruistic surrogacy is another form of exploitation in itself. It will lead to emotional abuse of female relatives by making surrogacy, a social obligation. It will just transport reproductive labor from the markets to the households by making women’s reproductive capacities into a free resource available for unquestionable consumption within families. Furthermore, since it is supposed to be altruistic in nature, the relatives cannot demand any compensation for the physiological risks of gestation that are a part of pregnancy, not to forget the emotional implications as well. This is just another form of labor, that is both emotionally and socially detrimental.
Quoting Nayana Patil, Medical Director at Akanksha Infertility and IVF Clinic in Kaival Hospital, Anand, Gujarat, “Any force on a close relative either emotional or otherwise can amount to forced labour violating Article 23 of the Constitution.” Nayana goes on to question the legitimacy of only providing medical compensation to surrogate mothers, she objects to the feminist decisions of the court and states that restricting surrogacy to only married couples within the hetero-normative, patriarchal structure of conventional, Indian society is an act of inequality. She states that this bill infringes upon the right to reproductive autonomy and interferes with the personal decisions of the intending parents. Patel also said that “[t]he compensation a surrogate gets only empowers her family. The government should not rely on feminist views to articulate its position. Article 14 of the Constitution guarantees ‘equality before the law and equal protection of laws to all persons’. Article 21 guarantees ‘protection of life and personal liberty of all persons’. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to pass the test of equality and there is no connection with the intended objectives of the proposed legislation.”
Last, instead of viewing commercial surrogacy as a means of exploitation, why not look at it as a source of income, as a profession, as providing compensation for services delivered? Surrogacy is too high a price to pay for altruism.
Additionally, the debate against commercial surrogacy is similar to the debate against sex work. The body is not being ‘sold’, it is being appropriately utilised in order to earn a livelihood. It is very easy to defame a profession with populist remarks, it is very easy to ban a whole industry and not provide any subsequent compensation to the stakeholders. The Government should provide monetary reparations to the women whose families are now at stake due to a lack of stable income and make immediate provisions for a minimum wage allowance (unemployment allowance) or create compensatory jobs. The Government is liable to provide financial compensation. The surrogacy bill has only made surrogate mothers more vulnerable to exploitation because of their joblessness, such a blanket ban on surrogacy will only turn out to be more distressing for women previously engaged in the practice.
5: Is The Bill Feminist In Nature?
Well, the bill is anything but feminist. Quoting Sarojini and Sneha Banerjee from Sama Resource Group for Women and Health, New Delhi, “The regulatory rationale seems to be centered on two axes—the notion of an ‘ideal”’family and ‘commerce’ in reproduction.”
The Surrogacy Bill places women in a position of mandatory altruism which is a form of exploitation, regardless of who enforces it and whether it occurs with a household or outside one; exploitation and forced labor are not relative and subjective concepts, and altruism may not always be voluntary. Close relatives who are women are subject to being forced into surrogacy that is assumed to be altruistic and voluntary. Do you see how this Bill will inevitably place women in an insecure position? Gender violence can occur and has occurred within families before, and because it takes place within families, women feel emotionally abused and incapable of seeking redressal. After all, speaking up against a relative is far more difficult than speaking up against a professional surrogacy agency.
Sneha adds, “It is interesting that the phenomenon of commercial surrogacy is found to be objectionable only because the woman acting as the surrogate receives remuneration. Apart from this aspect, there is no difference between what is known as commercial and altruistic surrogacy.” This Bill will only rob women of an income for rendering services that they’ve always rendered.
Also, by making surrogacy a moralistic argument, medical concerns have been sidelined. The post-natal requirements of surrogate mothers have not been attended to. Sneha and Sarojini also added that “[t]he bill has also left out the commercial and profit-driven industry of the Assisted Reproductive Technologies (ARTs), which is overwhelmingly found in the private healthcare sector. Infertility treatment using ARTs and IVF has been available commercially in India for over three decades now. Yet there is no regulation that governs this sector. Though guidelines were formulated by the Indian Council of Medical Research in 2005, they are not legally binding. While it is important to debate surrogacy, at the same time, the ARTs industry, which drives it, must also be regulated.”
Hence, surrogacy is only a specialised part of the bigger industry of assisted reproduction; solely regulating commercial surrogacy will not bring about any major changes in the industry.
6: Will A Ban On Commercial Surrogacy Affect The Economy?
Yes, it will. Banning commercial surrogacy will send the booming medical tourism industry crashing to its doom.
Many Indian fertility clinics and banks advertise online, providing a range of information for overseas clients from countries such as Britain, the United States, and Australia. It is a lucrative, $400 million-a-year business with over 3,000 fertility clinics across India that recruit poor, uneducated women to carry the embryos of others through to birth. The industry sees it as a win-win situation: childless couples see their dream come true with a genetic child and the impoverished Indian surrogate mother gets a generous income. The surrogate mothers are the primary beneficiaries in the surrogacy process, particularly from the financial perspective.
The surrogacy tourism industry not only supports individual women, but also the economy as a whole. About 80 percent of babies born through surrogate mothers are taking place for foreigners, not Indians. Medical tourism companies have made significant profits from commercial surrogacy by using sophisticated Internet-based strategies to market comprehensive services to prospective fertility patients. Designed to bridge the distance between healthcare consumers in developed countries on the one hand and healthcare providers and surrogates in developing and transitional-economy countries on the other, these services depend on low prices and lack of regulation in India to keep costs and hassles to a minimum. Fertility tourists come to India in search of surrogates from a wide range of countries, including Britain, France, the United States, Canada, Singapore, Japan, Australia, the Middle East, and Israel. The discrepancy between access to treatment at home and access abroad is perhaps the most significant contributor to the growth of fertility tourism in general and commercial surrogacy in particular. Hence, it is clear that the surrogacy industry has contributed significantly in sustaining the Indian economy. With a large clientele overseas, Indian infertility clinics received significant revenue through commercial surrogacy. Evidently, commercial surrogacy as a practice is not the problem, the problem is its repercussions which can be controlled with stringent regulations.
7: Why Does The Bill Place Restrictions On Single Parents And Live-In Couples?
According to the amendments approved by the cabinet, commercial surrogacy including sale and purchase of human embryo and gametes will be prohibited while, the health ministry stated, “ethical surrogacy to the needy infertile couples will be allowed on fulfillment of certain conditions and for specific purposes.” The amended Surrogacy Bill aims to benefit “infertile married couples who want to avail ethical surrogacy” and protect the rights of surrogate mothers and children born out of surrogacy.
There is an elementary problem with this- the necessity of marriage which again, indirectly restricts commercial surrogacy. Why is access to surrogacy limited to married couples? When live-in couples are recognised under the law, why not permit them to form a family? Necessitating marriage will also lead to psychological stress between couples who desire to have a child, and surrogate parenthood is premised on the notion of providing the opportunity of parenthood to everyone incapable or unwilling to have a child naturally. The restriction on single parents is unjustified too, because in many cases, single parents have successfully nurtured children.
Also, according to the Bill, surrogacy will only be permitted to couples, married for at least five years and who cannot conceive a child naturally.
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8: Why Can’t Surrogacy Be An Openly Accessible Option? Why Is Infertility A Necessary Prerequisite?
8: Why Can’t Surrogacy Be An Openly Accessible Option? Why Is Infertility A Necessary Prerequisite?Neetu Sharma, in LiveMint, observes: “Under the Bill, ‘infertility’ is a condition that has to be medically proven by a couple to be eligible to commission a surrogacy. The Bill defines infertility as the inability to conceive after five years of unprotected sex or medical conditions preventing a couple from conception. This definition does not cover all cases in which a couple is unable to bear a child, such as weak uterus, multiple miscarriages, fibroids, hypertension and diabetes. Such medical conditions which are becoming very common with changing lifestyles will not qualify a couple for altruistic surrogacy.”
Also, the Right to Life includes the right to reproductive autonomy, which includes the right to procreation and parenthood. It is not for the State to decide the modes of parenthood. Constitutionally, the State cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy.
Hence, these are a few questions that still remain unanswered. The surrogacy regulation bill is insensitive and inconsiderate, to say the least. Surrogacy is a complex medical procedure with social, cultural, biological, and economic repercussions, and this bill does not do sufficient justice to all the dimensions of surrogacy. A ban is not the answer, a ban is never the answer and it is essential to bring the ongoing ban culture to an end. It is necessary to question the legitimacy of the bill and critically understand its medical as well as societal relevance.
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