Is Banning Commercial Surrogacy The Right Thing To Do?

The Lok Sabha has passed a bill to ban commercial surrogacy in India. It is presented as a historic step expected to protect vulnerable Indian surrogates from exploitation and to change India's image internationally as a surrogacy haven. The present bill, preceded by multiple attempts of legislation aimed at regulating surrogacy, proposes placing a complete ban on commercial surrogacy in India.

Surrogacy is the medical practice, often supported by a legal agreement, in which a surrogate woman carries to term another couple's child. Both or either of the intending partners could be biologically related to the child. The surrogate or another donor may contribute egg or sperm in some cases. A surrogate woman may be approached by a couple when pregnancy is medically impossible for the intending mother or risks associated with pregnancy threaten her life. Surrogacy arrangements may also be sought by gay couples or intending single male parents.

Surrogacy can be altruistic or commercial in nature, depending on the involvement of monetary transactions. In altruistic surrogacy, the surrogate woman does not get paid for more than reasonable medical and insurance expenses, whereas the quantum of payment is a major factor in commercial surrogacy arrangements. Both altruistic and commercial forms of surrogacy are currently legal in India. But with the passage of the Surrogacy (Regulation) Bill, 2016, only altruistic surrogacy will be lawful, that too, an arrangement made between an infertile heterosexual couple married for five years and a close relative of theirs.

The Context and the need for a new law

Surrogacy was legalised in India in 2002 and since then, there have been efforts to regulate the practice. The National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005 by the Indian Council of Medical Research, sought to lay out certain guidelines. It made clear that at least one of the commissioning parents should be genetically related (should contribute egg or sperm) to the child and that the birth certificate should have only the names of the commissioning parents – not of the surrogate or the donor. It prohibited sex-selective surrogacy and protected the privacy of the surrogate and the donor. It also had provisions for the insurance coverage for the surrogate and compensation, which was to be agreed upon by the surrogate and the commissioning parents.

Though the guidelines had provisions to protect the interests of the surrogate woman, the donor, and the commissioning parents to certain extent, it did not have any legislative backing. The practice being legal without adequate regulation, India soon became a hot destination for persons wanting to have surrogacy arrangements. The surrogacy industry grew in leaps and bounds – some estimates suggested this to be over $2 billion a year industry with there being about 3000 fertility clinics in the country, thanks to the easy availability of surrogate women, affordability, and lax laws. Surrogate women were flown in from other countries too. The practice even got packed comfortably as surrogacy tourism.

Various ethical and legal issues related to the practice of surrogacy have reached public consciousness through difficult situations arising out of such practises. Demand and refusal for abortion, refusal to own or give up surrogate children have sparked major legal and ethical debates on surrogacy across the world. Need for legislation governing surrogacy in India was majorly born out of such a controversial case in 2008. A Japanese couple who commissioned surrogacy in India got divorced one month before the child was born. The father could not be given custody of the infant and the woman (she wasn't the genetic mother) refused to own it. The surrogate could not keep the child herself. The Supreme Court, while giving the custody of Baby Manji to its paternal grandmother, highlighted the lack of regulation related to surrogacy.

The Law Commission in 2009 noticed that Indian surrogates were being exploited by foreign nationals and demanded strict legislation to govern surrogacy practices in India. The Commission also recommended prohibiting commercial surrogacy and legalising altruistic surrogacy. The Assisted reproductive Technology (ART) Bill, formulated in 2010 and which never became a law, laid down further conditions for surrogacy in the country. The bill though allowed single parents to arrange for surrogacy did not permit single foreign nationals or homosexual couples to have children through surrogacy. The bill had not many provisions to protect the interests of the surrogate as well and was silent on the quantum of payment.

In the absence of a strict law regulating surrogacy practices, the country was seeing extreme cases of exploitation of surrogates. The poor women, desiring to escape the stigma of being surrogates, were usually placed in shelter homes away from home under questionable conditions. The agencies charged much higher from the commissioning parents than what was given to the surrogates themselves. The absence of regulations made it possible for women to become surrogates repeatedly, making them typically "baby growing machines" -India was building an image of a safe haven for easy and affordable surrogacy.

Facing criticism from the Supreme Court for not bringing surrogacy under the ambit of law, the government expressed its plans to ban commercial surrogacy in India. The Apex Court reprimanded the government for not framing adequate legal measures to protect the interests of the Indian surrogates and observed that the country was being turned into a favourite spot for fertility tourism. Considering the extensive exploitation of Indian surrogates, commercial surrogacy was banned in the country for foreign nationals in 2015. With the passage of the present surrogacy bill, India plans to extend the ban on commercial surrogacy to Indians as well.

Surrogacy (regulation bill) 2016

Once passed, the law will permit only altruistic surrogacy in India, which means, no monetary transactions beyond reasonable expenses will be paid to the surrogate mother. Some important points to be noted in the bill are:

• The infertile couple seeking an arrangement of surrogacy should be Indian citizens and married for at least five years.

• Surrogacy will be permissible in cases of infertility. Any other condition or disease for seeking surrogacy may be specified by regulations by the surrogacy board.

• The surrogate woman has to be a close relative of the couple and a married woman of between the age of 25-35 and having at least a child of her own. Such a woman shall not assist in any way for surrogacy more than once in her lifetime. (The bill however does not define the term "close relative".)

• The bill prescribes punishments of imprisonment for a term, which is not less than 10 years and fine up to 10 lakh rupees for undertaking surrogacy for a fee, advertising it or exploiting a surrogate mother.

• The child born of surrogacy will be deemed the biological child of the commissioning couple. The intending couple should not have any surviving child, biological, adopted, or born through surrogacy earlier, until such a child is certified to be suffering from life threatening disability or fatal illness.

• The surrogate mother, under the law, will be permitted to donate her egg in the process, thus becoming not only the gestational mother but also the biological mother.

• The central and state governments will appoint authorities who would provide eligibility certificates to the intending parents and the surrogate mother. (But the bill is silent on the timeframe under which such certificates are to be issued or any provision for appeal.) Such authorities will also regulate fertility clinics that arrange for surrogacy.

• If surrogate pregnancy has to be medically terminated, the written consent of the surrogate and approval of the appropriate authority will be required, in addition to complying with the Medical termination of Pregnancy Act, 1971.

The proposed law is criticized on several factors, especially for trying to escape the burdens of regulating commercial surrogacy. The bill, appears to be founded upon prejudiced perceptions which picture surrogacy as "Child buying", "Child Bearing Factory", "Rent a Womb Industry", or "Fertility Tourism". The bill appears to be informed more by moral panic than objective criteria. It has excluded the divorced, the widowed, the married for less than five years, the aspiring single parents, or the homosexual couples from the benefit of surrogacy - both altruistic and commercial, without offering any explanation.

The right to reproduce is a fundamental human right and the state cannot deny a human person this right to arrange to have a biological child of one's own, the legal way. Marriage is clearly a personal choice and discriminating the beneficiaries of surrogacy based on one's sexual orientation, age or marital status is discriminatory.

The bill presumes generously in its design and objective. It is too ambitious to think that a blanket ban on commercial surrogacy will end all the troubles related to surrogacy in India and that it will stop exploitation of Indian surrogates or Indian women at large.

In attempting to bring back reproductive labour from the market to the family, it presumes too much that the family woman is always sacrificial and altruistic. By closing reproductive labour at the household level, the bill tries to reinforce the patriarchal notion that the labour and the reproductive capacities of women are always available for easy consumption by "close relatives" for nothing. The bill has the potential to increase domestic violence and abuse of Indian women largely. Exploitation related to surrogacy will now be probably moved from the economically poorer classes to the richer ones. Not permitting women take money for being surrogates alone does not put an end to the exploitation of women.

A new law - to whose benefit?

Though the bill has been introduced with the intention of protecting vulnerable groups of Indian surrogates, on a closer look, it doesn't seem capable of achieving the said objective. Since surrogacy is a rich "industry" and is in great demand, it is highly possible that the fertility clinics will find loopholes to escape the law. There is already talk in the country of Indian surrogates being flown across the border for purposes of commercial surrogacy.

Will the bill have provisions to protect the interests of these vulnerable women pressed into cross border commercial surrogacy in countries where they will live solely on the mercy of the agencies? The enactment of a law banning commercial surrogacy will also push the entire business underground, placing the very women, whom the state intends to protect, at greater risks of financial exploitation and emotional trauma without any legal protection or security available.

Commercial surrogacy is not necessarily coercive or exploitative. The government should not close eyes toward the possibility of financial benefits for hand to mouth Indian surrogates, if the process is well governed and regulated. Becoming a surrogate might be once in a lifetime opportunity for them to establish families. Arguments of financial exploitation sound rhetorical and the state should not block the way by emotionally talking about building business on reproductive capabilities before talking about social justice.

From an economical perspective, India is shutting its doors to an avenue, where it could become a global leader by well regulating and administering commercial surrogacy. With the passage of the bill, thriving surrogacy agencies will be forced to operate underground, boosting black economy and will now stand greater chances of exploiting poor Indian surrogate women.

The bill is a hindrance for the intending parent/parents too, in achieving their most intimate dream. Banning commercial surrogacy will make it difficult for the infertile couples to find suitable surrogate mothers. They are left with seeking the mercy of "close relatives", if at all they have someone. It is not easy, unlike presumed, to persuade a "close relative" to undergo the pains and struggles and emotional burdens of pregnancy for nothing but charity.

Another point to be noted is the undue burden a ban on commercial surrogacy will place on the "close relatives". The women who will now be permitted by law to become surrogates will be pressed between the equally impossible Yes and No. The undue pressure on them to say "yes" is going to affect familial relations. Surrogacy is not a mechanical arrangement that a woman can agree to be party to, when there are no alternatives left.

Surrogacy is not a practice to be banned and sealed with emotionally closed talks. In most cases, surrogacy is a gift of life for both the surrogates and the intending parents. In cases where it is coercive and exploitative, the government should reign in with stronger and effective regulation.

Surrogacy requires regulation, not ban

Commercial surrogacy arrangements being exploitative or riddled with problems is no reason to have it banned. It is rather, an opportunity to have the entire process regulated. Banning, at least in India, does not stop anything. Have organ selling and purchasing ended after commercial transfer of organs was banned in India? Have the sex workers benefited from not having legalised prostitution? It is paradoxical that the very persons whom law aims to protect stand even more vulnerable because of the law or the lack of it.

Currently, Indian surrogates are placed at greater risks of health and financial exploitation as the clients are placed at the centre stage of surrogacy arrangements and not the surrogates themselves – this has to be reversed. A regulation should aim at providing surrogate Indian women with more bargaining power and protecting them that not a single Indian surrogate is duped or put into any medical or financial risk by either foreign or Indian nationals for lack of regulation or implementation.

By banning commercial surrogacy arrangements alone we will not be able to uphold the dignity of the hand to mouth Indian surrogates. The practice must be regulated, including the legal contract entered into by the surrogate and the intending parents - about the ownership of the resultant child, privacy of the parents, surrogate, and the child, the amount and manner of payment, post natal care etc. This would benefit the Indian surrogates and the intending parent/s and the state, and not a blanket ban.

Conclusion

The ethical debates concerning surrogacy revolve around a woman's right to enter into legal contract on the use of her body and reproductive capabilities. This will find similar tones in debates on prostitution or organ sale. The rights of the resultant baby, questions on the definition of motherhood, autonomy and informed consent, dignity of reproductive behaviour etc are some other ethical concerns.

Considering all of them, surrogacy is no child selling, no biological colonialism, no embryo transaction, no body renting – it is a gift of life and the present bill intends to deny precisely that to the intending parent/s. Adoption may be an easier option, but who can deny an individual's natural right to have a biological child of one's own? We should do more sensible talk and approach the matter with maturity.

Regulation, and not banning, may empower Indian surrogates by giving them sufficient bargaining power in the process. Placing a blanket ban on commercial surrogacy may not protect their legitimate interests. In a society of telling gender inequality, even altruistic surrogacy can place oppressed and voiceless women at greater risks. This may be even more when commercial surrogacy has been ended by law.

Banning a practice might be the easiest thing to do, but not the wisest always. The country should have rather spent time deliberating on how to regulate commercial surrogacy and to empower Indian women. 

(Dr Bins Sebastian is an Assistant Professor at the Department of Philosophy, St. Stephen's College, New Delhi. Views are personal)