Banning Commercial Surrogacy In India: Will It Lead To New Types Of Exploitation? – Analysis


By Neha Gupta*

‘Fertility tourism’ in India, prevalently called commercial surrogacy, emerged on the scene in 2002 and went transnational within a year. Fertility clinics around the country that are provide services of surrogating mothers for both the foreign and Indian clients form a gigantic industry within the medical profession. Surrogacy is generally undertaken by poor women who use it as a survival strategy to make their ends meet.

Legal difficulties in commercial surrogacy came to light for the first time in 2008 when a Japanese couple contracted an Indian woman to become a surrogate mother. Unfortunately, prior to the woman’s delivery, the couple got divorced. Consequently the child was born legally parentless as well as without citizenship. It is perhaps because of the difficulties that accompany surrogacy that pushed the Government of India to draft Surrogacy (Regulation) Bill in 2016.

This bill seeks to simplify the legal position of a child born out of surrogacy and certifies that he/she will have all the legal rights as a citizen and will not be abandoned by parents. The proposed bill also intends to bring about a radical change by enforcing a comprehensive ban on commercial surrogacy, permitting the scope of the same only to those couples who have been married for 5 years or more. It further stipulates that the surrogate mother can be a close relative only. As per this provision, the married blood relative who has herself borne a child can be a surrogate mother only once in her lifetime. Importantly, she cannot receive any money for her “selfless” act. The Bill even proposes to convert surrogacy into an ‘ethical and altruistic activity’ by putting forward different restrictions on its use.

The proposed bill has restricted surrogacy to legally-wedded infertile Indian couples between the ages of 23-50 years (women) and 26-55 (men). Couples with biological or adopted children are not entitled for having kids through surrogacy. Besides overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples cannot go for surrogacy as per the proposed legislation. The drafting of Surrogacy Regulation Bill has sparked numerous debates over the government’s role a domain which is considered to be highly private – reproduction.

Commercial surrogacy has been criticized by many for its exploitative nature. Most of the clinics, which are successfully carrying out commercial surrogacy practices, would henceforth be forbidden to carry out their activities under the current outline of the bill.

The government has described the new surrogacy bill as “revolutionary step” towards women’s wellbeing. Commercial surrogacy is certainly not free of problems. Surrogates have little idea about their rights, procedures and the like. Where pre-natal care is hardly seen, post-delivery they are made to surrender the baby immediately and are not given follow-up care. Moreover, a vast majority of surrogate mothers come from economically weaker backgrounds or are illiterate and have faint understanding of the contractual rights that they are guaranteed on paper as they undertake this pain-staking task. They get no legal or psychological assistance either.

The exploitation of women in the name of commercial surrogacy and the non-payment of actual amount promised to them for surrogacy have added to the exploitative nature of this already exploitative activity. However, bans are indeed not the solution to these problems. It is being debated if surrogacy via relatives will lead to new types of exploitation.

Banning of commercial surrogacy has also come under sharp criticism for the restrictions it has put on those who can, legally, get a child using this method. Many suggest that by placing conditions, such as the duration of an existing marriage, exclusion of gay couples, this bill will certainly be out of sync with the evolving social realities of India. Instead of banning commercial surrogacy, many believe that increased and strict regulation of surrogacy could have been the most effective way of ensuring that surrogacy doesn’t continue in the same exploitative fashion that it does today.

Those who are opposed to the bill have called it as “inherently illegal,” and even labelled the ban as a means to promote underground black marketing. The state, it has been opined, should not meddle in something as private as one’s decision to have a child and how, especially since surrogacy is not a preference but a last resort for those wanting to have a child.

However, many countries across the world have banned commercial surrogacy including Australia, the UK, Canada, France, Germany, Sweden, New Zealand, Japan and Thailand etc. Given that many countries have passed legislations banning surrogacy, the bill on surrogacy introduced in India appears to be in consonance with global norms. Forbidding commercial surrogacy can possibly increase the prospect for adoptions in India.

The draft Surrogate (Regulation) Bill endeavours to thoroughly deal with the concern of surrogacy in India. The sensitivity of the bill is indeed banning commercial surrogacy. Commercially profiteering from a woman’s womb by exploiting her vulnerability is an awful offence. The drafting of Surrogacy Bill 2016 therefore seeks to protect the defencelessness of women in India from different types of offences.

*Neha Gupta is a Research Scholar at Dibrugarh University, Assam. Comments and suggestions on this article can be sent on: [email protected]

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