Commentary: India's ban on commercial surrogacy is no fix to legal, moral complexities
The dearth of an international law on surrogacy creates complications for all stakeholders given the global nature of the business, says journalist Neeta Lal.
NEW DELHI: India is poised to impose a blanket ban, criminalising commercial surrogacy through the Surrogacy Bill 2019, a move that will ring a final death knell of the country’s US$2 billion industry.
The stringent bill under consideration bans all forms of commercial surrogacy; women who agree to carry babies to delivery as surrogates must agree to do so for “altruistic” reasons and must be “close relatives” of the recipients.
Significantly, it allows only Indian couples, married for at least five years and childless, to opt for surrogacy.
There are also rigorous criteria for surrogate mothers, genetic parents, fertility clinics, medical professionals, and the egg and sperm donors. Violators face up to 10 years imprisonment and fines of up to US$14,066.
PROTECTING SURROGATE WOMEN
India’s Health Minister Harsh Vardhan has called the ban “the need of the hour". The ostensible aim behind the ban is to prevent exploitation of surrogate women at the hands of brokers and clinics. As the bill says:
Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by surrogacy clinics, which leads to rampant commercial surrogacy and unethical practices.
In 2002, India legalised commercial surrogacy to promote medical tourism, prompting a rush from thousands of hopeful would-be parents from the United States, the United Kingdom, Australia, Europe, Canada and Israel to Indian hospitals to choose from a bank of surrogate mothers to carry their babies.
A pool of highly qualified doctors and fertility experts as well as relaxed regulations governing such arrangements propelled demand. The Indian Health Ministry excluded surrogacy for foreigners in 2015.
Affordable rates by hospitals and gestational carriers played a catalytic role, too. While in the United States, surrogacy can cost US$70,000 to US$150,000, it ranges from US$20,000 to US$60,000 in India, depending on the clinic and services.
Indian surrogate mothers reportedly earn between US$5,000 to $16,000 per birth depending on the location, birth and terms of contract, a fraction of what may be offered to their western counterparts.
An estimated 2,000 foreign babies were born to Indian surrogates each year, according to the 2014 book Patients With Passports: Medical Tourism, Ethics, and Law by Harvard law professor I Glenn Cohen. Another study by Sama, a resource group for women and health in India, states that about 3,000 clinics offered surrogacy services.
The controversial bill has polarised public opinion. While supporters of surrogacy have slammed it, bioethicists and feminists endorse the clampdown.
“Selling pregnancy as a service is objectionable because it puts a price on human body parts and life much like organ trade,” opines Ranjana Kumari, physician and woman’s rights advocate. “The ban will stop vulnerable women from being exploited by the system.”
The practice is especially harmful in nations with glaring gender inequity, adds Kumari. In a 2017 UN Development Programme report on gender inequality, India ranks 125 among 159 countries.
Worse, many Indian women are ignorant of the risks of such procedures. A 2015 study found Indian surrogates unaware of how implantation of multiple embryos, fetus reduction or caesarian sections can imperil their health or even prove fatal, and a 2018 study also detailed risks.
THE RISKS OF A BLACK MARKET
Banning commercial surrogacy, some critics point out, could create a black market akin to the one in organ trade and prostitution with the additional risks of poor women being trafficked or foreigners abandoning children born through surrogates.
For cross-border childless couples, long legal battles to obtain their surrogate children aren’t uncommon.
“Cross-border surrogacy also leads to problems in citizenship, nationality, motherhood, parentage and rights of a child,” explains a Delhi-based fertility expert who requested anonymity. “Children are at times denied nationality of the country of the intended parents.”
In India, two-week-old Baby Manji Yamada was abandoned in 2008 after the commissioning parents in Japan divorced during the pregnancy and the commissioning mother refused to accept the baby.
The court granted custody to the baby’s paternal grandmother after a protracted courtroom battle, but the case created a public uproar as well as demands for a legal framework to address such infractions.
Studies suggest a key motivation among surrogate parents is altruism, while many have specific goals in mind, such as sending their children to better schools or clearing family debt. Remuneration hoists them over the poverty line.
A 28-year-old from Gujarat, living in New Delhi with two children, says that for her surrogacy offers a pathway out of poverty. “I also feel happy that I’m able to help someone who isn’t able to have a baby of her own,” says the part-time cook.
According to Flavia Agnes, a women’s rights lawyer and activist, a woman should have the right to decide whether she wants to bear the child for herself or someone else: Surrogacy isn’t just a moral issue, it is linked with livelihoods. Many candidates are able to better their lives through such arrangements. This is done in consultation with spouses and families; so what’s the problem?
While some women may be coerced into surrogacy by families and brokers, others are willing participants. Agnes argues that the industry should not be dismissed as inherently exploitative and surrogate women as “damsels in distress".
The ban could also encourage an unregulated cross-border industry across neighbouring countries like Thailand, Nepal and Cambodia. Agnes says, and jeopardise the safety of women and children even more.
In 2015, Thailand made it illegal for foreigners to seek commercial surrogacy in Thailand or from Thai women.
Vietnam also passed a law legalising altruistic surrogacy while discouraging commercial surrogacy. Cambodian mothers are routinely sent to Laos to deliver babies.
WHAT ABOUT INTERNATIONAL LAW?
The issue is complex and there are no simple answers. Some suggest an international agreement, similar to the Hague Adoption Convention, would streamline the process while discouraging many of the ills that complicate commercial surrogacy transactions.
Indeed, the dearth of an international law on surrogacy creates complications for all stakeholders given the global nature of the business.
At the same time, banning commercial surrogacy by individual countries is no solution. Prudence lies in allowing strictly regulated commercial surrogacy while educating and sensitising surrogates about the risks and ensuring protection of health and commercial interests for all participants.
Neeta Lal is a New Delhi–based editor and journalist. This commentary first appeared on Yale Global Online.