Future of Surrogacy in India

The Maharashtra government recently passed a resolution allowing 180 days maternity leave to mothers having a baby through surrogacy, making it the first Indian state to do so. It has now set a precedent for other states and hopefully the centre, to follow in this respect. However, this resolution also tends to re-ignite the debate on the booming surrogacy business in India as well as rights of surrogate mothers, which emanated after the Central government banned foreigners from using surrogate mothers in India. As one can guess, this issue will be lost amidst all the noise on economic reforms and thus, I shall attempt to shed some light on this issue.

The Bombay high court ruled last year that women having babies through surrogacy are also entitled to maternity leave and while several courts have subsequently ordered leave in specific cases, the state government is the first to pass a resolution to that effect. The resolution comes in the backdrop of the Assisted Reproductive Technology (ART) bill ready to be tabled in parliament which aims at proper regulation and supervision of ART clinics and banks in the country to prevent misuse of the technology, including surrogacy, and for safe and ethical practice of these services. But, as it stands today, it bars foreign couples from using surrogacy services in India and shall only be permissible to Overseas Citizen of India (OCI), People of Indian Origin (PIO), Non Resident Indians (NRI) and any foreigner married to an Indian citizen.

The decision to ban foreign couples from using surrogacy services was taken in late 2015, in response to a Supreme Court verdict and amid claims by women’s rights groups about IVF clinics used as ‘baby factories’ for the rich and exploitation of women in ‘rent-a-womb’ clinics. The move represented the age old pathological distrust of enterprise by liberal groups in India and the tendency of Indian governments of appeasing their contentions, commonly with a complete ‘ban’, without analysing the issue at hand with the required depth it needs. The move didn’t just hurt the multi-billion dollar commercial surrogacy industry, but more importantly, it hurt the means of livelihood for the thousands of surrogate mothers, who usually come from the poorest districts of the country and are often forced to work as domestic help in absence of any other alternative. The surrogacy industry provided them with that alternative but women’s groups in India usually uphold their own perceptions about women’s rights and not of those who they claim to represent. It also robbed numerous foreign couples of the chance to have a baby through surrogacy without incurring the exorbitant costs of the same in most other countries which permit commercial surrogacy. Also, many of these couples have their embryos stored in various clinics throughout India who now face the risk and costs to export the same to such other locations.

Rather than asking for a complete ban, the women rights’ groups should have embraced the flourishing ‘surrogacy tourism’ business in India and instead campaigned for stricter licensing requirements, proper regulation, capacity building in clinics, minimum pay and proper living conditions for surrogates along with an efficient grievance council, possibly including representatives from one of the numerous women’s groups in the country. That being said, there is still time for damage control since the said ART bill hasn’t yet been passed and it is up to them to decide what it is that they stand for – ‘pro-choice’ for women or the silly rhethoric of ‘anti-capitalism’.

I hope that various other state governments follow Maharashtra in giving maternity leave to women having babies through surrogacy and at the same time, the ART bill is passed in parliament, BUT not without a few amendments.


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