Commercial Surrogacy: Finding the Middle Ground
Updated: Sep 19, 2020
Artwork via NYTimes
Written by Deepanshi Narula
The burgeoning business of surrogacy in India is widely known and every year, thousands of people, mostly from the developed countries, fly-in here in search of surrogate mothers. The business flourished in India after the legalization of commercial surrogacy in 2002, giving rise to a “rent-a-womb” market. Since then, people from varying backgrounds, from ethics to medicine, have questioned its legitimacy in India. An understanding of the complex and controversial nature of commercial surrogacy is exigent to answer the question of its legitimacy.
Historically speaking, the surrogacy industry in India boomed after 2002, when the Indian Council of Medical Research (ICMR) laid out certain guidelines, which made the practice legal, but did not give it legislative backing. The Indian Express reported that a study conducted in July 2012, backed by the UN, put the surrogacy business at more that $400 million with more than 3000 fertility clinics all over the country. The lax laws and the lack of enforcement in the industry proved to be major reasons behind the sturdy growth of the industry.
The ICMR guidelines were pro-surrogacy and protected the surrogate mother and the commissioning parents. It prohibited sex-selective surrogacy, required a life insurance cover for the surrogate, and ensured the right to privacy of both parties, among other things. However, the guidelines were effective only on paper and failed to actually regulate the industry.
In the recent years, the Surrogacy (Regulation) Bill was introduced by the Minster of Health and Family Welfare, Dr Harsh Vardhan, in the Lok Sabha. The bill was approved by the Union Cabinet in February 2020 after months of contention and recommendations. It was met with backlash, both from the opposition and the women working in the surrogacy industry. The main proposition of the Surrogacy (Regulation) Bill is to completely ban commercial surrogacy, which is defined therein as “surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.”
Only altruistic surrogacies will be allowed where the surrogate is a “close relative” of the commissioning parents. Under the bill, registration of all clinics will be mandatory and acts of commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, and selling/import of human embryo will be punishable by law. In a way, the bill counters all the pro-surrogacy guidelines that were set by the ICMR in 2002 and has once again sparked the debate around commercial surrogacy.
People have been largely divided on the issue and there are strong arguments from both sides. The group that seeks to ban commercial surrogacy argues that it takes a toll on the surrogate’s health and that these women are exploited by the rich foreigners and middlemen. Uneducated, poor women from rural areas form a major proportion of surrogate mothers. They are not aware of their rights and privileges which lead to their exploitation by the commissioning parents as well as the fertility clinics.
According to an article published by the Indian Journal of Medical Sciences, there have been reports of young women being used to harvest ova without their consent to the risks involved in this procedure; of clinics promoting IVF without the necessary resources; and of specialists organising surrogacy for foreign clients without ensuring the security of the surrogate mother and the baby.
It is also argued that the foreigners often use their monetary power and influence to make unreasonable demands, poorly affecting the surrogate’s mental health. It points to the age-old superiority pattern of the influential westerners. There have also been cases of parents denying the responsibility of the children when they were born with disabilities, forcing the surrogate to raise the child even when she was financially incapable of doing so.
The other group, that advocates for commercial surrogacy, and has strongly opposed the Surrogacy (Regulation) Bill, argues that the decision to be a surrogate mother, whether altruistic or for financial reasons, must lie with the surrogate, respecting her control over her body. Not all surrogates are uneducated, and some want to do it willingly for an infertile couple. Altruistic surrogacy doesn’t prove to be a perfect substitute here because it is morally correct to reimburse the surrogate for all that she goes through for a year.
The monetary reimbursement also somewhat lightens the attachment of the surrogate with the baby. The most jarring provision of the law is the prohibition of single parents, LGBTQ couples and live-in couples from becoming commissioning parents. It also prohibits unwed and childless women from being surrogates.
According to Centre for Civil Society, the bill is in direct violation of reproductive rights, guaranteed as part of the right to life under the Constitution of India. A bill that allows surrogacy only for married heterosexual couples, in effect criminalises the reproductive rights of LGBTQ, single/divorced, live-in couples, or widowers. Infringing on Article 21 of the Indian constitution, the Bill also violates the privacy of the intended couple and the surrogate. It also prohibits women's right to earn a livelihood by wilfully serving as surrogates and instead forces them to dole out their reproductive labour free of cost. This dismissive view will leave surrogates open to further commodification.
There’s a need to protect the women working in the commercial surrogacy industry, whilst also upholding their personal liberty and reproductive rights. Altogether banning commercial surrogacy would not help the cause, rather it would make the market go underground and cause further exploitation of these women. By the above arguments, we can conclude that commercial surrogacy is a complex spectrum, both extreme ends of which are problematic.
Rather than banning the practice completely or allowing it to act as a free market, the government should strictly regulate it by implementing stringent laws. There should be regulated clinics and the women who want to be surrogate mothers must be educated about their rights and the problems or complications that they may face. Their right to choose, to life, and to safety, after all, must be given the most importance.