Surrogacy in India has had an interesting journey with the country emerging as a key global center for commercial surrogacy in the early part of the century to now the shift towards a purely altruistic surrogacy regime with the imminent enactment of the Surrogacy (Regulation) Bill, 2019. What prompted the re-orientation of India’s surrogacy policy framework was the rampant commercialization and the prevalence of unethical practices in the industry which led to exploitation of surrogate mothers.
Surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy. Altruistic surrogacy does not involve any monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding basic medical expenses and insurance coverage.
Commercial Surrogacy: Success and Failures
The commercial surrogacy industry in India is vilified in the media as ‘baby-factories’ for the rich and powerful or in other similarly pejorative terms. Such a description, however, masks the fact that since the legalization of the practice in 2002, fertilization clinics in the country have been a source of immense financial and psychological security for the surrogate mothers.
Surrogate mothers can make anywhere between $4000 – $8000 per arrangement. The money that they generate from surrogacy arrangements are nearly to four to five times their annual family income. This income allows them to make lump-sum purchases like buying a house, marrying off their daughters or securing their children’s education and taking care of their ailing parents.
Further, the newly empowered surrogate mothers usually reject the social stigma attached to their profession. In fact, surrogate mothers construct powerful psychological narratives that help them resist the dominant discourses that fix the surrogate’s role and subject position as sex workers, immoral women and disposable contract workers. This is a direct consequence of the financial and emotional empowerment achieved by being employed as surrogate mothers for childless couples by infertility clinics in the country. Thus, it may be argued that a blanket ban on commercial surrogacy might well be counterproductive.
However, the absence of a proper regulatory regime for commercial surrogacy has led to multiple malpractices in the industry including the usurping of surrogacy income by middlemen, lack of a medical disclosure or informed consent framework and even the abandonment of children by the intending couples post the delivery. These practices cause severe financial, medical and psychological stress for the surrogate mothers.
In view of the same, Indian banned commercial surrogacy for foreign citizens in 2015. Further, the Surrogacy (Regulation) Bill, 2019, which seeks to ban commercial surrogacy even for Indian citizens has been passed by the lower house of Parliament. The Bill that was passed by the lower house in August 2019 prohibits commercial surrogacy and allows for altruistic surrogacy under prescribed guidelines. Also, it prescribes rather stringent eligibility requirements for both intending couples as well as the surrogate mothers.
As per the provisions of the Bill, only heterosexual Indian couples who have been married for five years and are proven to be infertile can enter into surrogacy arrangements. The strict infertility condition would preclude those couples from undertaking surrogacy who may be fertile but are unable to bear a child due to other medical conditions. Further, the bill explicitly excludes inter-alia, single persons, divorcees, live-in couples, widows and widowers, gay couples from adopting the surrogacy route for conceiving children.
Also, the Bill provides that surrogate mothers shall only close relatives of the intending couple who have been married and have a child of their own. Further, they can be surrogate mothers only once in their lifetime. No other country that allows altruistic surrogacy prescribes such strict eligibility conditions for surrogate mothers.
In the above context, it must be argued that this legislative proposal fails to appreciate the significance of the financial and emotional rewards derived by surrogate mothers since the legalization of commercial surrogacy in 2002. Further, it makes the false assumption that exploitation of women will cease simply by banning commercial surrogacy. The legislation is not adequately sensitive towards the social pressures and psychological traumas that can potentially affect the surrogate mothers who are intimately related to the intended couple.
Altruistic Surrogacy: Not a Silver Bullet
The government has advocated banning commercial surrogacy on the pretext that shifting to an altruistic surrogacy regime would greatly reduce the potential for emotional or financial distress of surrogate mothers in the country. This is because the surrogate would be a close relative of the intending couple and no monetary reward will be involved for the former’s services. However, evidence suggests that the chances of psychological stress is equal, if not greater, even for surrogate mothers in an altruistic surrogacy framework. Therefore, moving to a purely altruistic surrogacy regime might not be a silver bullet for all surrogacy related problems in the country.
In the context of altruistic surrogacy, one must ask: can a close relative or friend, viewed as a potential surrogate mother, provide genuine informed consent? Is she making an autonomous decision free from coercion, particularly in complex family contexts? Is she aware of the emotional impact of giving up a baby that she has carried for nine months? Can a potential surrogate mother be apprised of, process and understand all the details about pregnancy complications, risks associated with associated reproductive technologies (ART), psychological ramifications for herself, the child she may carry and others, the terms of a surrogacy contract and implications for future relational complexities, let alone the broader ethical implications for the community – about which she may have a genuine interest?
Thus, it is clear that surrogate mothers, even those who chose to do so for purely altruistic purposes, may have to navigate significant psychological stress during the course of their pregnancy. This punctures the government’s view that shifting to an altruistic surrogacy regime would end the psychological trauma otherwise faced by surrogate mothers.
Conclusion
It can be concluded that through the new legislation, the Surrogacy (Regulation) Bill, 2019, the government has failed to acknowledge the relative merits of commercial surrogacy in providing financial and psychological security to surrogate mothers. A stricter regulatory approach, instead of a blanket ban, is needed to deal with the vulnerabilities and corruption plaguing the current system.
Simultaneously, surrogate mothers who chose to be so for altruistic purposes, would potentially have to go through similar psychological stress that surrogates go through in a commercial surrogacy regime. In fact, the proposed bill is currently weak in addressing many of these issues and detailed deliberations are needed in this respect.
The government must not hasten the passage of the bill and instead hold proper discussions with all the relevant stakeholders before coming up with a piece of legislation that is conducive to all their interests.
Taarush Kishore Jain 