India Debates The Surrogacy Law
India is commonly known as the surrogacy hub of the world. Throughout the country, infertile couples, including many from overseas, pay local women to carry their embryos through till birth. Thousands of infertile couples across the world can afford to spend millions on renting a womb. This makes commercial surrogacy a lucrative business, with a large number of fertility clinics cropping up in India, predominantly clustered in Maharashtra and Gujarat. Domestic demand for surrogates is also increasing, but overseas, primarily western couples still commission at least 50 per cent of these surrogacies. Estimates show that more than 25,000 children are now being born through surrogates in India every year in an industry worth $2 billion. Women from economically backward sections earn ten years worth their salary by renting their wombs.
However, most of the industry currently operates unchecked. The debate over the ethics of commercial surrogacy began in 2008 when a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave birth to a healthy baby girl. By then, however, the couple had separated, and the baby was both parentless and stateless, caught between the legal systems of two countries. The child is now in her grandmother’s custody in Japan but is yet to obtain citizenship, as surrogacy is not legal in Japan. This booming industry contains countless reports of unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy, and rackets around intermediaries importing human embryos and gametes.
Another incident occurred in 2012 when an Australian couple who had twins by surrogacy arbitrarily rejected one and took home the other. Similarly, in Chennai, a single mother of two decided to become a surrogate mother in the hope that the payment would help her start a shop near her house. She delivered a healthy child, but her troubles bore little fruit for herself. She received only about Rs 75,000, which comprised only 50 per cent of the total sum. An auto-rickshaw driver, who served as a middleman, took the rest of the money. To cease the operations of these unregulated businesses, JP Nadda, the Minister of Health and Family Welfare at the time, introduced the Surrogacy (Regulation) Bill in 2016. The bill was passed in Lok Sabha in the same year.
The Surrogacy Bill 2019 was modified by the incumbent Minister of Health and Family Welfare, Dr Harsh Vardhan, on 15th July 2019. The bill proposed a complete ban on commercial surrogacy where the procedure is undertaken for monetary gain. But it allowed altruistic surrogacy, which involves no monetary compensation to the surrogate mother other than payment of medical expenses and insurance coverage during the pregnancy. The modified bill states the penalty for violating the law as imprisonment for up to ten years and a fine of up to ten lakh rupees.
The bill gives the surrogate mother a few benefits, such as the chance to withdraw consent of surrogacy even after her consent form has been approved. It has safeguards built in against sex selection of the baby. The intending couple will be required to produce a ‘certificate of essentiality’ and a ‘certificate of eligibility’ to avail a surrogate. The Surrogacy Bill will also help implement a crackdown on the number of IVF and surrogacy clinics operating illegally in the country, and place laws to ensure that the couples who choose to use a surrogate do not abandon the baby.
In September 2019, scores of medicos practising at All India Institute of Medical Sciences Delhi (AIIMS) demanded stricter surrogacy laws after a 42-year-old surrogate mother, who was 17 weeks pregnant with twin babies died. It was revealed that she was carrying twins in exchange for monetary benefits, and had concealed her past medical history of tuberculosis, hydrocephalus, and depression. In light of such an incident, the argument for passing the Surrogacy Bill was strengthed.
The 2019 bill modified the conditions that a woman must satisfy to be eligible to act as a surrogate. These amendments were made with the intent to curb the exploitation and mistreatment of surrogate mothers. According to the new bill, the surrogate mother needs to be a close relative of the intending couple, a married woman having a child of her own, 25 to 35 years old, a surrogate only once in her lifetime, and possess a certificate of medical and psychological fitness for surrogacy.
Adoption may get a leg-up in India following the passage of the Surrogacy Bill, banning commercial renting of wombs and allowing only altruistic surrogacy. As commercial surrogacy will not be an option soon, intended single parents or couples desiring to have a baby will have to look at adoption to fulfil their need. Adoption rates in India have always been low, but they have been dropping in the past few years. The government’s Central Adoption Resource Authority (CARA) adoption statistics show that in 2010 there were 5,693 in-country adoptions, while in 2017-2018, there were only 3,276 in-country adoptions.
India had legalised commercial surrogacy in 2002, to promote medical tourism. The practice of commercial surrogacy, where women are paid to carry and deliver babies for people who cannot conceive them biologically, is banned in most Western countries. In countries where surrogacy is allowed, the procedure is extremely expensive. In the United States, it costs around $70,000, whereas, in India, this service is offered for a mere $12,000. This prompted a rush from thousands of hopeful would-be parents from the United States, the United Kingdom, Australia, Europe, Canada, and Israel. The blanket ban, criminalising commercial surrogacy through the Surrogacy Bill 2019, will impact medical tourism in India, and in effect, sound the final death knell for this $2 billion industry.
Activists and experts have argued that the bill has several potential blind spots, including the mandate that only ‘close relatives’ can become surrogate mothers. This doesn’t take into account the patriarchal nature of many family relations in the country, and the mandate that only a man and women married for five years, can commission surrogates. To surrogate a child for money was an option for a livelihood, often undertaken at a personal cost. But it granted the woman the right to use her womb to earn money.
When India first banned surrogacy for gay couples in 2012, infertility businesses in Delhi continued to sign on gay clients from all over the world. Sharmila Rudrappa, a professor of sociology at the University of Texas, Austin, explained, “Clients shipped their frozen sperm to Delhi, which was then used to fertilize eggs from Indian donors. The resulting embryos, legally belonging to the gay men, were implanted to Indian surrogate mothers. To avoid the ban, infertility clinics then moved surrogate mothers across international borders into Nepal. There, they gave birth, and clients arrived to pick up their children.”
In the present economic condition of India, this bill with an outright prohibition on commercial surrogacy might only push surrogacy to be achieved in a more unethical way. Agencies exploit legal loopholes to sign up clients for surrogate babies. Critics fear that banning commercial surrogacy could create a black market akin to the one in organ trade and prostitution with the additional risk of poor women being trafficked or foreigners abandoning children born through surrogates.
Shutting down commercial surrogacy takes away a woman’s right to make decisions about her own body. Surrogate mothers protested against the bill, on the grounds they would be denied an additional income. At the heart of the matter, the Surrogacy Bill, which was designed to safeguard the rights of surrogates, might be the bane of the very thing it is trying to protect.
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