Debate: Should Indian government put a comprehensive ban on commercial surrogacy?

The surrogacy market in India is worth over US $2 billion. India is now planning to regulate this trade. The Surrogacy (Regulation) Bill, 2016, which was cleared by the Union Cabinet on August 24 this year, bans unmarried couples, single parents, live-in partners and homosexuals from opting for surrogacy. It will now be debated in Parliament. Kundan Pandey speaks to a cross-section of people to capture a complex conversation

By Kundan Pandey
Last Updated: Thursday 13 October 2016

 Can't allow woman's body for making money

People often say that surrogacy is a woman’s conscious choice. Our stand is that it is a very wrong notion of the family to use the woman’s body to make money. Is she a child-producing factory? In many cases, we have found that family members coerce women into taking up surrogacy. The bill aims to ban commercial surrogacy and allow only altruistic surrogacy. In most countries, commercial surrogacy has been banned, and a consciousness has been created. Nobody wants to promote this idea, so why should India lag behind? It is a menace.

Foreign nationals, who want to escape tough surrogacy laws in their own countries, come to India in search of poor vulnerable women, who can be used for renting their wombs to produce a baby for a petty amount of money very easily in the absence of regulations. After this bill is passed, they will be unable to do so.

It is important to note that 80 per cent of babies born through surrogate mothers are taking place for foreigners, not Indians. Also, illegal surrogacy has grown to become a $2 billion industry. We want to communicate that surrogacy should be the last option, and only for Indians.
But surrogacy rescued our family

AHILYA PARMAR, (Name changed), a 28-year-old surrogate mother from Anand district, Gujarat

With the help of surrogacy, I earned Rs 600,000 in April, 2015, and bought a house for my family. Earlier, we were living in rented room. My husband is an autorickshaw driver, and I have two daughters. We want to educate our daughters and help them live a dignified life. And to achieve this, I may need to go for surrogacy again. My husband’s earning is not even sufficient for food and clothing. Except surrogacy, I don’t think I have any other option.

I know many families who, if they don’t opt for surrogacy, will have to go to sleep hungry. In many families, the male members are not able to get job; some are drunkards. I also know families, where members are sick, and the women have to come forward and opt for surrogacy to treat them.

We were also going through a tough time, when one of my neighbours suggested this idea. Surrogacy rescued our family. And everyone, including my husband, agreed with my decision. At present, my mother is sick, otherwise, I would have gone for surrogacy once again. If government bans this option, it will be tough for us. My daughters’ future is important to me. I don’t know how I will ensure their education.
 A new `relative' kind of gender exploitation

AS PER the bill, commercial surrogacy will now be banned, and only altruistic surrogacy will be allowed for infertile Indian couples who have been married for at least five years. Moreover, only females, who are close relatives, can become a surrogate for a childless couple.

The bill has been formulated based on the myth that the practice of surrogacy exploits surrogates. However, endorsing altruistic surrogacy too will lead to emotional and social pressure on close female relatives and make them oblige to be selfless, and not ask for any compensation for the loss of livelihood, and the immense emotional and bodily labour of gestation involved in surrogacy. Isn’t this another kind of exploitation of females?

Any force on a close relative either emotional or otherwise can amount to forced labour violating Article 23 of the Constitution. The bill bans surrogacy for live-in partners, single parents, homosexuals, overseas citizens of India, persons of Indian origin and foreigners. The Supreme Court recognises live-in relationships, but the bill does not. Why? Marriage, indeed, is a very personal choice.

The compensation a surrogate gets only empowers her family. The government should not rely on feminist views to articulate its position. Article 14 of the Constitution guarantees “equality before the law and equal protection of laws to all persons”. Article 21 guarantees “protection of life and personal liberty of all persons”. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to pass the test of equality and there is no connection with the intended objectives of the proposed legislation.

Further, the Right to Life includes the right to reproductive autonomy, which includes the right to procreation and parenthood. It is not for the State to decide the modes of parenthood. Constitutionally, the State cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy.
 It still supports the reproductive market

While the regulatory move restricts who can access surrogacy, there is no prohibition on the practice of surrogacy per se. Allowing surrogacy only for heterosexual couples who are childless, and have been married for five years, is discriminatory towards people who remain outside the framework of marriage in a hetero-patriarchy—single parents, couples in a live-in relationship and queer people.

Only a few provisions of the new bill have been communicated by the government, while the bill itself is not yet in the public domain. The regulatory rationale seems to be centered on two axes—the notion of an “ideal” family and “commerce” in reproduction. In its legitimisation of “altruistic” surrogacy within “close relatives”, the bill draws upon the patriarchal assumption of women’s nature as being sacrificial and altruistic. It also seeks to bring back reproductive labour from the market to the family and household levels, which are domains where women’s labour is available as a “free” resource for consumption by “close relatives”.

If exploitation of women in the market is a concern, then their exploitation within families is also a reality that must be addressed. It remains to be seen whether the bill provides safeguards against coercion of women by family members to become surrogate mothers, as this would be yet another example of gender violence.

It is interesting that the phenomenon of commercial surrogacy is found to be objectionable only because the woman acting as the surrogate receives remuneration. Apart from this aspect, there is no difference between what is known as commercial and altruistic surrogacy. In its modern “gestational” avatar, surrogacy is marketed as an “infertility treatment” using the technique of In Vitro Fertilisation (IVF). But the broader issue, which must receive regulatory attention, is the question of how such “treatment” is administered—the use of hormonal drugs and injections, multiple IVF cycles, effects on the physical as well as mental health of women, whether informed consent has been taken from them, their right to reproductive autonomy and the relationship between the surrogate mother and the child she gives birth to. In this somewhat moralistic clamour over banning payments to surrogate mothers, adequate discussion on these issues has been sidelined.

The bill has also left out the commercial and profit-driven industry of the Assisted Reproductive Technologies (ARTs), which is overwhelmingly found in the private healthcare sector. Infertility treatment using ARTs and IVF has been available commercially in India for over three decades now. Yet there is no regulation that governs this sector. Though guidelines were formulated by the Indian Council of Medical Research in 2005, they are not legally binding. While it is important to debate surrogacy, at the same time, the ARTs industry, which drives it, must also be regulated.

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