India Must Tread Cautiously on Surrogacy Law
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India Must Tread Cautiously on Surrogacy Law


India is on course to ban commercial surrogacy and disallow foreigners and non-resident Indians from hiring surrogates in the country.

The Union Cabinet last week cleared the draft bill—Assisted Reproductive Technology (Regulation) Bill—which is likely to be introduced in the Parliament in the winter session. If passed, the Act will deal a death blow to the estimated $2 billion industry  that has made the country a global surrogacy hub.

The draft bill, proposed by the Hindu nationalist Bharatiya Janata Party (BJP)-led government, prohibits commercial surrogacy, like in the U.K., while permitting altruistic surrogacy. It proposes to now allow only heterosexual childless couples, married for at least five years, to have children through surrogate mothers, who have to be close relatives, and without the involvement of a financial transaction. It also lays down that only mothers with at least one child can offer to rent out their wombs, and may do so only once in their lifetime.

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While commercial surrogacy has been practiced in India legally since 2002, the large-scale proliferation of the trade has so far gone on unchecked in the absence of any legislation. It is one of the very few countries—Russia, Ukraine, and some U.S. states are among others—where commercial surrogacy is practiced (Thailand, a formerly booming center for the procedure, banned commercial surrogacy last year). According to estimates by a UN-backed study of July 2012, the industry is worth more than $400 million a year, with over 3,000 fertility clinics across India.

The need for legislation to regulate surrogacy has been long felt amid ethical and legal concerns. After a survey of 100 surrogate mothers in Delhi and Mumbai, the Center for Social Research published in a report concluding that there were few safeguards in terms of legal provisions or health insurance for the women, who were mostly poor and uneducated. There was no fixed rule for payments nor was there any provision for post-pregnancy health care.

It’s a pity, though, that otherwise welcome legislation to regulate an exploitative business comes as a tool for the government to further its socially conservative agenda. In denying surrogacy to single individuals and same-sex couples—homosexuality is a criminal offense in India—the government has upheld traditional family structures and age-old parenting ideas, overlooking the realities of modern India. If anyone was in doubt, External Affairs Minister Sushma Swaraj, the senior BJP leader who headed the Group of Ministers that drafted the bill, clears the air. “We can say this doesn’t go with our ethos,” she said at the press conference to explain why certain populations, including gays and lesbians, were barred from surrogacy. Foreigners have to stay out, she added, because “divorces are very common in foreign countries.”

If this much moralizing was not enough, she also took a dig at Bollywood celebrities, though without naming them, who have had children through surrogacy. “I am pained to say that the procedure that started as a necessity has become a hobby of sorts. This is not a thing for pleasure… it has become a fashion these days,” she said. Famous Bollywood actors Shah Rukh Khan and Aamir Khan are among those who have children through hired wombs, boosting the popularity of surrogacy in India. “Permission (for surrogacy under the bill) is for necessity. There is no permission for cases in which the wife does not want to go through labor… You make a poor woman go through labor pain instead,” Swaraj said.

Her comments and the discriminatory clauses came in for sharp criticism, especially from liberal quarters. The outrage over government’s decision as to who can, or cannot, have a surrogate baby has taken center stage, while issue of surrogate mothers seems to have taken a backseat. Shekhar Gupta, a senior Indian journalist, tweeted: “Rubbishing of paternity leave & new surrogacy law show this is our most socially conservative govt yet, re-establishing old gender equations.”

Congress, the principal opposition party, was quick to describe the laws as “out of sync” with modern times, “unscientific,” and from the “stone age.” The party has decided to oppose the bill when it is placed in Parliament.

Backers of commercial surrogacy have argued that banning it totally will not help the cause of surrogate mothers. The industry will go underground, making the surrogates even more vulnerable. On the contrary, they say, if it is allowed with checks and balances, the business will generate income for very poor women and their rights will be protected.

That regulation will save the women from exploitation is perhaps a simplistic assumption. Surrogacy cannot be seen as a gainful employment. Pregnancy is fraught with risks and women take it up only when forced by their circumstances. In 2012, a surrogate mother died in Gujarat just after giving birth to a premature baby of an American parent. In an industry centered on the baby, the surrogate mother is seen as little more than a rented womb.

True, women choose to become surrogates and risk their lives. They are not forced. They are lured by the large sums of money—sometimes as big as what they earn in 15 years working as maids. Can large monetary compensations outweigh all concerns—the physical and psychological trauma of these marginalized women? Can the choice of the surrogate mothers be seen as an empowered decision? Legislation may help, yes. But given India’s poor track record in compliance to rules and regulations, how much will illiterate women be able to gain from it? Who will empower them to do so?

By way of example, organ sales are also banned in India; only kidneys can be donated, that too only by relatives. Yet there’s a thriving kidney racket in the country that relies on duping and coercing poverty-stricken villagers. Likewise, surrogacy can take the illegal route, while remaining legally “altruistic” on paper.

But babies have to be registered. Unlike black money, there cannot be undeclared children. While pregnancies can be kept secret, as many Indian surrogates do for fear of stigma, babies cannot live secretly. So, monitoring the genesis of every baby should be possible, in theory at least, given that there is a mechanism in place to register every birth. But who will do it? The government’s corrupt agencies?

More than the legalities, it is the ethical dilemma that must be first addressed. The issue of commercial surrogacy is complex and it is only essential for the government response to be nuanced. Imposing sweeping ideas in the name of “ethos” dilutes the core issue.

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