Contributing to the ongoing debate on India's surrogacy bill, Dutta and Sarkar discuss the potential implications of the bill on the country's billion-dollar surrogacy industry. They contend that India could follow in the footsteps of Israel and adopt a more pragmatic and holistic approach to regulating commercial surrogacy, rather than banning it altogether.
The approval of the Surrogacy (Regulation) Bill, 2016 by the Union Cabinet on 24 August 2016 has raised a hue and cry in the billion-dollar surrogacy industry in India. A comprehensive law to regulate the surrogacy market in India and to protect the interests of surrogates has been long overdue and the government, through this bill, hopes to address this. The question we pose in this article is whether this regulation does enough to achieve this goal.
But then what is surrogacy all about and how is it different from natural motherhood? The word surrogate is derived from the Latin word surrogatus meaning a substitute (Law Commission of India, 2009). Thus, a surrogate is a woman who bears a child for a couple or a person, who generally cannot conceive a child on their own, with the intention of handing it over to them after birth.
According to the Law Commission of India (2009), surrogacy can be categorised into two types: traditional/partial/straight and gestational/full/host. The former is defined as: "A pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the fetus and gives birth to a child for another person". On the other hand, the latter is defined as: "A pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the fetus and gives birth to the child". Surrogacy, in general, is attained through in-vitro fertilisation (IVF) whereby the fertilised egg (fetus) is implanted into the surrogate's uterus. Surrogacy is termed as "commercial" when the surrogate is financially rewarded for her services (in addition to the medical expenses involved), and it is termed as "altruistic" when the intended parents are not liable to pay for anything apart from the medical bills of the surrogate mother.
The Bill has banned commercial surrogacy, permitting only altruistic surrogacy whereby heterosexual couples who have been married for at least five years and without any biological/adopted children can go in for surrogacy. Further, the service should be provided by a "close relative" of the couple, in other words, without any money changing hands. The government has barred single people, live-in partners, homosexuals, and also foreigners, Non-Resident Indians (NRIs) and Persons of Indian Origin (PIOs) who hold Overseas Citizens of India (OCI) cards, from having children through surrogacy.
However, the question we face today is: how far would criminalising the concept of commercial surrogacy in the country help address the anxieties relating to the potential 'exploitation' of the wombs of poor and vulnerable women in developing countries like India? Also, could policymakers have dealt with the commercial surrogacy issue in a better way than proposing to outlawing it completely?
Since the birth of India's first IVF baby in Kolkata in 1978, the field of Assisted Reproductive Technology (ART) has developed rapidly in the country, with foreigners pouring in from across the globe. Commercial surrogacy in India has had enormous demand from countries like US, UK, and Australia where there are conflicting legal laws concerning surrogacy. France, Germany, Italy, Spain, Portugal, and Bulgaria have placed an embargo on all forms of surrogacy. On the other hand, in countries such as the UK, Canada, Hungary, Ireland, Denmark, and Belgium, the government allows only altruistic surrogacy. Such countries have preferred to pass the buck to developing countries such as India, Thailand, Ukraine, Mexico, Nepal, Poland, Russia, and Georgia, to deal with commercial surrogacy where surrogates are readily available for hiring (Lee 2009). Interestingly, the US has a long history of surrogacy in some states, particularly California. However, the confusing state of the laws and high legal costs to deal with surrogacy contracts has inflated demand for 'surrogacy tourism' in India (Lee 2009). "Families through Surrogacy", an international non-profit organisation calculated that the approximate average cost of dealing with surrogacy in the US is US$100,000, as opposed to US$47,350 in India (Cheung 2014). This significant difference in cost has increasingly led American couples, desperate to have babies, to seek Indian women as surrogates.1
According to the Confederation of Indian Industry (CII), the annual value of the Indian surrogacy industry today is over US$2 billion, further giving a chance to the opponents of commercial surrogacy to argue that the wombs of poverty-stricken women are catering to the country's GDP. However, they fail to consider that banning commercial surrogacy might lead to a thriving black market. This can directly be compared to the case of organ transplants, particularly kidneys, in India. Under Indian law, only close relatives can donate their kidneys to patients. However, in a recently reported scandal in Mumbai, poor villagers who were acting as kidney donors were paid around Rs. 300,000 (US$4,500), and the kidneys were then resold by middlemen or touts at a massive profit. Thus, prohibiting commercial surrogacy might create a similar underground market, breeding illegal and disguised surrogacy. This is likely to further threaten the interests and rights of the surrogate mother.
Studies have shown that surrogates are mostly financially-deprived women who are hired by the upper and middle strata of society (Banerjee 2013). The privately-owned infertility clinics serve as intermediaries between the surrogates and the intending parents. These clinics charge huge amounts in the name of conducting IVF and for other hospital expenses, from desperate couples - mostly foreigners and people belonging to the higher-income class - who are willing to spend hefty amounts for getting a baby. On the other hand, the surrogates – who generally do not have an alternative source of similar income - are paid scantily. This bill when effective is likely to cause illegal surrogacy, which will aggravate the existing inequality, as surrogates will lose any right to payments. This will intensify the problem of exploitation of the impoverished women rather than solving it.
Over the years, commercial surrogacy has often been defamed as the 'rent-a-womb' industry, involving the outsourcing of pregnancy, commodification of babies, and exploitation of the female womb, leading policymakers in different countries to ban all forms of payments to surrogates (Spar 2006, Stuhmcke 1996). However, it has been argued that even in the case of altruistic surrogacy, women can be coerced to act as gestational surrogates for infertile couples, putting them in a more vulnerable position (Stainsby 1993, Stuhmcke 1996, Banerjee 2013).
At present, payment to surrogates in India is at the behest of private infertility clinics. According to us, the State, could intervene and lay down guidelines regarding the fair minimum fee for surrogates, instead of proposing a ban on commercial surrogacy. Doing so would provide better financial protection to the surrogates. We can learn from Israel, which has adopted a more pragmatic and holistic approach to regulating commercial surrogacy: A committee is in charge of reviewing and approving surrogacy contracts in a manner that protects the interests of all stakeholders. In contrast to India, Israel's public healthcare system follows the guidelines provided by the committee with regard to the screening and counselling of potential surrogates. In this way, the State assesses the suitability of a candidate to serve as a surrogate, and whether her consent is based on full information, in addition to providing financial protection (Lee 2009). Thus India, instead of outlawing commercial surrogacy altogether, which can aggravate the existing miseries of surrogates, can in ways, follow in the footsteps of Israel and better protect them. We have to wait and watch the implications of this bill as time unfolds.
- Also, with the rampant growth of infertility clinics such as the Akansha Infertility and IVF clinic, which was established by an infertility specialist, Dr. Nayna Patel in Anand, a small town in Gujarat in 1999, surrogacy has received a lot of media attention, attracting people who view it as their last resort.
- Lee, Ruby L (2009), "New Trends in Global Outsourcing of Commercial Surrogacy: A Call for Regulation", Hastings Women´s Law Journal, 20(2):275-300.
- Banerjee, Swapnendu (2013), "Gestational Surrogacy Contracts: Commercial or altruistic? A Contract Theoretic Approach", The Manchester School, 81(3):438-460.
- Cheung, H (2014), 'Surrogate babies: Where can you have them, and is it legal?', BBC News, 6 August 2014.
- Law Commission of India (2009), 'Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy', Report No. 228, Government of India, August 2009.
- Spar, Debora L (2006), "Where Babies Come from: Supply and Demand in an Infant
- Marketplace", Harvard Business Review, 84(2):133–142. Available here.
- Stuhmcke, Anita (1996), "For Love or Money: The Legal Regulation of Surrogate Motherhood", Murdoch University Electronic Journal of Law, 2(3).
- Stainsby, M (1993), "The Surrogacy Debate Again: What about Altruistic Surrogacy?", St. Vincent's Bioethics Centre Newsletter, 11(2):5-6.
- Thomas, M (2016), 'Top Indian hospitals are buying kidneys from poor villagers to sell to rich patients', Quartz India, 12 August 2016.