Understanding India's Complex Commercial Surrogacy Debate
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Understanding India's Complex Commercial Surrogacy Debate


India has developed itself into a country with world-class medical facilities, with prices far lower than most developed countries. Medical tourism is accepted as a crucial form of tourism in India, with many major hospitals in the country even providing sightseeing trips around the country as part of the “Indian experience.” However, the proliferation of the industry has exposed a few darker spots as well. One such issue is the thriving institution of fertility tourism in India, popularly called “commercial surrogacy.”

In surrogacy, a woman carries a child to term for its intended parents via different fertility techniques, including IVF implantation. She is compensated for carrying the child, hence the term commercial surrogacy.

Commercial surrogacy was allowed in India for the first time in 2002 and has since grown into a massive industry within the medical profession. While no clear economic numbers are available, a World Bank study conducted in 2012 estimated the surrogacy business to be worth almost $400 million a year, with 3,000 fertility clinics across India.

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However the legal complications with regards to commercial surrogacy came to the fore for the first time in 2008 when a Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. Thus the child was born legally parentless as well as without citizenship. Though the child was finally handed over to her grandmother, it opened questions about a practice that had continued unabated for a number of years. The culmination of these questions resulted in India’s draft Surrogacy (Regulation) Bill that was approved by the Cabinet in August 2016.

The draft bill provides for surrogacy as an option to parents who have been married for five years can’t naturally have children, lack access to other reproductive technologies, want biological children and can find a willing participant among their relatives. This would come as a major blow to fertility clinics in India, as most of them have thriving commercial surrogacy practices, which would be outlawed under the current form of the bill. Commercial surrogacy will result in 10 years’ imprisonment.

The bill also seeks to clarify the legal position of such a child and ensures that a child born of surrogacy will have all legal rights as a citizen. It would also restrict overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement. The surrogate mother has to be a married woman who has herself borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Couples who already have biological or adopted children cannot commission a surrogate child.

As expected, the bill has generated a lot of debate around the country. Opponents have argued that by allowing surrogacy for select classes of citizens on the basis of their lifestyle, sexual orientation, and life choices, the bill would violate citizens’ Fundamental Rights as laid down in Article 14 of the Indian Constitution.

However, the bill seeks to be in step with the legal issues at the moment. Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. Hence at this point, conferring legal rights to a surrogate child to gay parents would endanger the rights of the child itself. The Surrogacy (Regulation) bill can clarify the rights for India’s gay population only once these larger legal questions (about the status of gay marriage, for instance) have been answered. Hence at this point, restricting surrogacy to relationships which have a clear standing in the eyes of law protects the rights of the child and ensures consonance with Article 14 of the Indian Constitution rather than doing disservice to it.

The second major issue relates to the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy.

Meanwhile, we must also take into consideration the exploitation of women in the name of commercial surrogacy. In 2014, Al Jazeera carried a story which documented how Indian women were exploited in the name of commercial surrogacy. While these women actually did the hard work of carrying a child for nine months, fertility clinics often pocketed more than 50 percent of the amount that was promised to them. Over the years a number of news reports have carried similar stories. There have been few success stories of surrogate mothers being paid what they deserved; most have ended in dejection and despair.

Thus, it should come as no surprise that most countries of the world have banned commercial surrogacy. Thailand, which was until recently considered the commercial surrogacy factory of the world, banned the practice after an Australian couple who had twins through commercial surrogacy decided to leave the child with Down’s syndrome behind while accepting the healthy child. Today there is an absolute ban on commercial surrogacy in most countries of the world, with a complete ban on all forms of surrogacy in a few. Seen in this light, it is no surprise that the Indian government has taken its own step toward a ban in consonance with global norms (unlike the Hague Convention on Adoption, however, there is no clear convention on surrogacy worldwide).

Meanwhile, the banning of commercial surrogacy can perhaps open up doors for adoption as well. In a country like India, where one encounters frequent stories of children being abandoned by their parents out of poverty or social stigma, especially girls, banning commercial surrogacy could encourage parents to look toward adoption as a means of fulfilling their dreams of parenthood.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. While there are provisions that will definitely evolve with time, the heart of the bill is undoubtedly banning commercial surrogacy. This is indeed a step in the right direction. Profiting commercially from a woman’s womb by exploiting her helplessness is a terrible crime. An evolved society is one that seeks to protect the right of all. A poor woman is undoubtedly among the most voiceless of India’s citizens, and the draft Surrogacy Bill 2016 seeks to protect her.

Ibu Sanjeeb Garg is an avid follower of Indian policy issues. He also looks at ethnic tensions and their dimensions in India’s Northeast. The views expressed here are his own.

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