Towards a humane approach to surrogacy

The proposed ban on commercial surrogacy may lead to a black market. If the state laid down guidelines governing fair fees for surrogates instead, it would ensure better protection for them

The approval of the Surrogacy (Regulation) Bill, 2016 by the Union Cabinet on August 24 has raised a hue and cry in the billion-dollar surrogacy industry in India. A comprehensive law to regulate the surrogacy market and protect the interests of surrogates was long overdue and the government, through this Bill, hopes to address this. 

According to the Law Commission of India (2009), there are two types of surrogacy — “traditional” and “gestational”. The former is a “pregnancy in which a woman provides her own egg, which is fertilised by artificial insemination, and carries the foetus and gives birth to a child for another person”. The latter is a “pregnancy in which one woman (the genetic mother) provides the egg, which is fertilised, and another woman (the surrogate mother) carries the foetus and gives birth to the child”.

Surrogacy is termed “commercial” when the surrogate is financially rewarded for her services (in addition to the medical expenses involved), and it is termed “altruistic” when the intended parents are not liable to pay for anything apart from the medical bills of the surrogate mother.

The Bill proposes to ban commercial surrogacy, permitting only altruistic surrogacy, whereby heterosexual married couples who have been married for at least five years and without any biological/adopted children can go in for surrogacy. Further, a “close relative” of the couple should provide the service. However, the question is: How far would criminalising the concept of commercial surrogacy help curtail the potential “exploitation” of poor and vulnerable women in a developing country such as India? Also, could policymakers have dealt with the commercial surrogacy issue in a better way than by proposing to outlaw it completely?

Commercial surrogacy in India has had enormous demand from countries such as the US, UK, and Australia, where there are conflicting laws concerning surrogacy. These countries have preferred to pass the buck to developing countries such as India to deal with commercial surrogacy, where surrogates are readily available for hiring. Families Through Surrogacy, an international non-profit organisation, calculated that the approximate average cost of dealing with surrogacy in the US is $100,000, as opposed to $47,350 in India. This significant difference in cost has increasingly led American couples, desperate to have babies, to seek Indian women as surrogates. 

According to the Confederation of Indian Industry, the annual value of the Indian surrogacy industry is currently over $2 billion, further giving a chance to the opponents of commercial surrogacy to argue that the wombs of poverty-stricken women are catering to the country’s GDP. However, they fail to consider that banning commercial surrogacy might lead to a thriving black market. This can be directly compared to the case of organ transplants, particularly kidneys, in India. Under Indian law, only close relatives can donate their kidneys to patients. However, in a recently reported scandal in Mumbai, poor villagers who were acting as kidney donors were paid around Rs 300,000 ($4,500), and the kidneys were then resold by middlemen or touts at a massive profit. Thus, prohibiting commercial surrogacy might create a similar underground market, breeding illegal and disguised surrogacy. This is likely to further threaten the interests and rights of surrogate mothers.

Studies have shown that surrogates are mostly financially-deprived women who are hired by the upper and middle strata of society. Privately-owned infertility clinics serve as intermediaries between surrogates and intending parents. These clinics charge desperate couples huge amounts — mostly foreigners and people belonging to the higher-income classes — who are willing to spend hefty amounts to have a baby. On the other hand, surrogates — who generally do not have an alternative source of similar income — are paid scantily. This Bill, when it takes effect, is likely to cause illegal surrogacy, which will aggravate the existing inequality, as surrogates will lose any right to payments. 

Over the years, commercial surrogacy has often been defamed as a “rent-a-womb” industry, leading policymakers in different countries to ban all forms of payment to surrogates. However, it is often argued that even in the case of altruistic surrogacy, women can be coerced to act as gestational surrogates for infertile couples, putting them in a more vulnerable position.

At present, the payment to surrogates in India is at the behest of private infertility clinics. The state could have intervened and laid down guidelines governing the fair minimum fee for surrogates, instead of proposing a ban on commercial surrogacy. Doing so would provide better financial protection to surrogates. We can learn from Israel, which has taken a more pragmatic and holistic approach to regulating commercial surrogacy: A committee reviews and approves surrogacy contracts in a manner that protects the interests of all stakeholders. In contrast to India, Israel’s public health care system follows the guidelines provided by the committee with regard to the screening and counselling of potential surrogates.

In this way, the state assesses the suitability of a candidate to serve as a surrogate and whether her consent is based on full information, in addition to providing financial protection. Thus India, instead of proposing to outlaw commercial surrogacy altogether, which can aggravate the existing miseries of surrogates, could have followed Israel and better-protected them. We have to wait and watch the implications of this Bill as time unfolds.  
 

Souvik Dutta is assistant professor, IIM Bangalore, and Subhasree Sarkar is a doctoral student in the department of economics, University of Calcutta. Published with permission from Ideas For India (www.ideasforindia.in), an economics and 

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