Baby Manji’s birth in July, 2008, was the result of a contract between a Japanese couple and an Indian surrogate in Anand, Gujarat. The intending parents divorced before the surrogate mother gave birth, making the newborn the subject of a landmark case in transnational commercial surrogacy. None of the parties involved claimed the child, effectively rendering her stateless for a brief while. During this period, lawsuits were contested in the Rajasthan High Court and subsequently, in the Supreme Court. The newborn was ultimately claimed by the couple’s grandmother in 2008, ending the fiasco but provoking debates on the legal and ethical deficiencies of surrogacy in India.
If you’ve ever heard of surrogacy or in-vitro fertilisation (IVF), then you’ve heard of Assisted Reproductive Technologies (ART). These medical innovations have relieved millions of expectant parents across the world from the burdens of childlessness or infertility. But now, surrogacy, in particular, is all set to be regulated by the Centre’s new Surrogacy (Regulation) Bill, 2019—which could have irreversible effects on not only the professional and personal autonomy of women surrogates, but on what the State deems to be ‘moral’ occupations for women.
It is a matter of great pride that in the form of ART Regulation Bill 2020 along with Surrogacy Regulation Bill 2020 & Medical Termination Pregnancy (MTP) Amendment Bill 2020, India has brought most progressive legislatures in the world to support women’s reproductive rights.
— Smriti Z Irani (@smritiirani) February 19, 2020
The rent-a-womb industry has particularly flourished in India—especially the commercial gestational surrogacy industry. Legalised in 2002, in this type of surrogacy, the surrogate mother is paid for carrying a child of the intending parents. Along with the likes of Thailand and Mexico, India became a global hub for commercial surrogacy, thanks to the global value of the rupee: commercial surrogates could be hired for as cheap as $15,000 to $20,000 USD, as against costs upwards of $50,000 in the United States. According to the last estimates produced by the Law Commission of India, the sector raked up an estimated revenue of ₹250 crores in 2009; by 2017, this figure had reached ₹16,465 crores.
It seemed like an ideal scenario: expectant parents could raise a family, surrogates volunteered for paid work, and India’s medical tourism coffers expanded. There was only one deadly problem: this sector wasn’t regulated.
As the demand for surrogate mothers grew—a 2012 study estimated that of the 25,000 children born via surrogacy, half were in service of Western clients—so did “the routine exploitation of vulnerable, impoverished women of colour who are commissioned by wealthy white Westerners to perform a labour they would otherwise decline.” Cases of the extreme exploitation of surrogate mothers (who were often poor and facing desperate economic circumstances), abandoned children like Manji, and the manipulation of hopeful parents by surrogacy agencies also increased as the industry grew.
In 2015, keeping in mind the various complications of transnational surrogacy, the Centre banned foreign nationals from accessing Indian surrogates; it also openly took a stance “not to support commercial surrogacy.” However, this was by no means the end of regulatory restrictions that were sought to be imposed on the stakeholders of surrogacy-based births.
More recently, the Surrogacy (Regulation) Bill, 2019—a reiteration of a Bill first tabled in 2016—aims to end the covert exploitation of female surrogates through an outright ban on commercial surrogacy by proposing an ‘altruistic’ surrogacy model. Passed by the Lok Sabha on the 5th of August, 2019, it was then referred to the Rajya Sabha in November, who directed it to a Select Committee led by BJP MP Bhupender Yadav.
The Committee’s report was tabled in February of 2020, the Surrogacy (Regulation) Bill was assented by the Union Cabinet on the 26th of the same month. As a copy of the 2020 Bill is yet to be released, which of the Select Committee’s revisions have been included remains to be seen.
The new model seeks to “find a midway which facilitates surrogacy but in a regulated way,” which sounds sufficient to regulate the exploitative excesses of the industry. But, the definitions laid out in the Surrogacy (Regulation) Bill, 2019 are where the meat of this debate lies—exploitation is solely understood as the commercialisation of the woman’s body. And yet, even the modified 2020 Bill’s attempts to make the surrogacy process less exploitative may ironically throw up more ethical challenges than anticipated.
What Does the Bill Say?
The Surrogacy (Regulation) Bill, 2019, specifically bans commercial surrogacy, which is when a surrogate mother is paid over and above basic medical expenses and insurance for bearing a child. But wait—does that mean that surrogacy, where only medical care is paid for, is legal?
Yes. While commercial surrogacy is out, something called altruistic surrogacy is in.
In an altruistic surrogacy model, a woman acts as a surrogate willingly and graciously, that is, “altruistically”. Here, the intending parents just cover the mother’s medical and insurance costs; that is, the purpose of the service is not commercial, or to further profit off the ‘exploited’ body. The original version of the 2019 Bill aimed to ensure ‘willingness’ by mandating that the surrogate mother be a “close relative” of the intending parents; they should also be married, have previously given birth, be between the ages of 25-35, and also be certified to be mentally and physically fit.
The provision of a ‘close relative’ seems to be guided by the idea of the inherent ‘altruism’ of kind relatives, who have our best interests at heart and vice versa, thereby making surrogacy a less exploitative process for all involved parties.
To do away with such assumptions, the Select Committee has removed the recommendation, amending the new version such that any “willing woman shall act as a surrogate mother and be permitted to undergo surrogacy.” Regardless though, to avoid the potential commercialisation of any surrogate, they are to only act as surrogates once in their lifetime.
Additionally, the gametes or eggs will not be provided by the surrogate mother, which severs any biological ties with the child, reducing the scope for legal complications. A surrogate will also have to be certified by an appropriate authority to be mentally and physically fit to undertake the procedure. The surrogate mother can withdraw consent before the gamete is implanted.
Now, given that foreign nationals are out of the picture, the question is: who can request for an altruistic surrogate? The 2019 Bill states that the couple should be Indian citizens to avoid citizenship conflicts—the Select Committee has suggested amending this such that persons of Indian origin are also included. They should also have been married for at least five years, and be certified to be ‘infertile’ by the local District Medical Board. As per the Select Committee’s recommendations, this has been amended in the recently-passed version such that any couple with a “medical indication necessitating gestational surrogacy” can become surrogates. It also specifies gender-specific age limits too: the wife should be between the ages of 23-50, while the husband between 26-55. They shouldn’t have any other children (whether adopted, surrogate, or biological), however, importantly, this provision excludes children with disabilities, or those with fatal illnesses.
All cases of altruistic surrogacy are to be supervised by two new regulatory authorities: the National and State Surrogacy Boards. They are to advise the Centre on surrogacy policy, lay down a regulatory framework of surrogacy, and ensure best practices are followed to mitigate exploitation.
Now, the Rajya Sabha Select Committee further extended the definition of ‘intending parents’, stating that single women—whether divorced, or widowed—can also apply for altruistic surrogacy. This, along with all the other regulatory amendments mentioned here, read as fairly progressive steps towards addressing the challenges of exploitation. However, they belie a simplistic understanding of the ethical challenges the idea of altruism itself poses, within a fraught industry.
Can ‘Altruism’ Be Free of Exploitation?
By framing surrogacy through an overly simplistic understanding of altruism, the model neglects the severe social, mental, and physical taxation a woman goes through, irrespective of whether she is a relative or not. The Bill effectively reduces the intense labor of the mother to a mere voluntary donation, exalted through her ‘goodness’—this behaviour qualifying as ‘legal’.
“Yet, reasonable compensation for a woman’s labour,” as Radhika Thapar Bahl, Advocate and Advisor of Fertility Law Care asserts, “is very essential, especially when considering lost wages over the nine-month period. The dignity of her labour should be honoured.” By impeding free market dynamics, the model reduces the incentives for women to act as ‘willing’ surrogates—sentiments also echoed by various organisations and individuals in the Select Committee’s report.
The eligibility criteria for potential surrogates are also ambiguous. Limitations such as women being married with a child of their own, and that they be a surrogate only once in their lifetime, are not backed by much justification—especially in comparison to global counterparts. The recommendations seem to subtly enforce a hetero-patriarchal bias in a Bill primarily aimed at protecting a woman’s autonomy.
These limitations may disincentivise altruistic surrogacy, forcing some intending parents to depend on illegal commercial donors, who if the Bill passes, will only operate under the table. So, if exploitation—whether physical, mental, or economic—as a result of surrogacy is the main concern, altruistic surrogacy doesn’t appear to offer a peaceable alternative in and of itself.
Framing the Ideal Indian Family
The Bill was specifically passed on to the Select Committee as it was deemed ‘too restrictive’. While progressive amendments have been made in light of the definitions of intending surrogates and fertility itself, the restrictions placed on intending parents—most of which ironically still stand—are a testament to a ‘traditional’ understanding of the family.
For example, many have also termed the Surrogacy (Regulation) Bill regressive since it prohibits single male parents from seeking a child through surrogacy, and limits the ability of same-sex couples to independently exercise their rights to reproductive autonomy. This falls in line with recent discriminatory government laws against the interests of the LGBTQIA+ population, such as the Trans Act, 2019. Moreover, the age restrictions—26-55 years old for the husband and 23-50 years old for the wife—are not backed by data pertaining to the average age at marriage.
— ARROW (@ARROW_Women) May 14, 2017
Such restrictions require re-interpretations that are progressive such that, as Advocate Thapar says, they honour the rights “that every individual to be a parent and to have a family.” That the State should have the bureaucratic discretion on who gets to raise a family at all implies serious violations of rights to reproductive autonomy, privacy, and liberty. Moreover, they place restrictions on the right to practice a specific occupation too—that is, commercial surrogacy.
What About the ‘Exploited’ Surrogates?
What stands out about the Surrogacy Regulation Bill, 2019 and the Select Committee Report, is that they hardly address the less understood reasons as to why women become commercial surrogates. While there have certainly been multiple cases of exploitation, and some women may have been forced by their husbands or families to enter the profession, many may have also done so out of their own will. The objective of centering women’s reproductive autonomy is compromised when the primary stakeholders are absent.
For example, initial studies point out that surrogates tend to fare better than the general population on indicators such as education and employment, while their incomes exceed the international poverty line. Surrogates themselves have argued that the income earned from their participation aids in providing a future for their children.
From “Sociodemographic characteristics of 96 Indian surrogates: Are they disadvantaged compared with the general population?” by Virginie Rozee, Sayeed Unisa, Elise de la Rochebrochard, published in PLOS ONE, 2019. (CC BY-4.0).Yet, while the Select Committee Report references opinions on the Bill from the UN, NGOs, lawyers, fertility specialists, and many others, not once are these concerns voiced by actual commercial surrogates themselves. “Some surrogate mothers who I represent were very keen to have their representations included in the Report,” says Bahl. “But their calls to the various concerned government departments went unanswered. Even though the Committee visited surrogacy centres, from my experience, the interests and complaints of surrogate mothers on their own terms have not been well represented at all.”
The State’s presumption that commercial surrogacy alone is inherently exploitative also explains the harsh non-bailable punishments listed in the Bill, should any doctor or clinic be suspected of malpractice. “This creates an atmosphere where one is guilty until proven innocent, which will again push commercial surrogacy underground, and create more vulnerabilities,” says Thapar. If the form of surrogacy proposed by the Centre can still exploit different stakeholders by virtue of the Bill’s restrictions, then why not just join the ranks of countries like Bulgaria, France, Germany, Italy, Portugal, and Spain and ban all forms of surrogacy altogether?
What could have been an opportunity to set out a rigorous yet holistic regulatory framework that actually considers everyone’s best interests, has turned out somewhat differently. “If a surrogate or parent chooses to exercise their reproductive autonomy, we can’t disregard that. The proposed rules and regulations need to be made keeping this in mind—that would actually be a balanced, middle-ground approach,” asserts Bahl. Even as we await the much anticipated progressive iteration of the Surrogacy (Regulation) Bill, its frameworks of regulation clearly still pose ethical and legislative dilemmas.
Editor’s note: in an editorial oversight, a previously published version of this article failed to mention the Union Cabinet’s approval of the amended Bill in February, relying solely on documents pertaining to its far more regressive predecessor. This inadvertent error is most regretted, and we thank our readers for flagging the mistake with us.