Does a Blanket Ban on Commercial Surrogacy Fulfil its Purpose?

The Union Cabinet has approved the Surrogacy (Regulation) Bill, 2020[1] after making changes to the bill introduced in 2019. India, before the bill, was considered as the “Surrogacy Hub” of the world. The surrogacy industry in India was considered to be a 2.3-billion-dollar market with over 20,000 clinics[2] across the country. The multi-billion-dollar industry of commercial surrogacy which was largely unregulated hit nadir when provisions of this bill stated the absolute ban on commercial surrogacy. Further, a point to be noted is that this bill has been partly influenced by the PIL filed by, Jayshree Wad, in the Supreme Court, stating the need to ban commercial surrogacy, also The Department of Health Research, in 2009 submitted that the 228th report (2009) of the Law Commission of India strongly recommended the need to prohibit commercial surrogacy and the need for regulated ethical altruistic surrogacy services. But, is banning Commercial Surrogacy truly the solution to prevent exploitation against surrogates?

What is Surrogacy?

The word “Surrogacy” originates from the Latin word “Surrogates” which means substitute. This refers to a woman substituting another woman[3]. It is the usage of a third party for reproductive purposes. When the intending parents who cannot have children on their own come to an agreement with a surrogate mother who is willing to get pregnant, gestate and give birth to their child and when the child is born, he/she shall be transferred legally and physically to the parents, and the surrogate will no longer have any parental obligations or any trace of parentage. Surrogacy is an important option, for couples who are unable to have a child of their own due to medical or physical reasons, to fulfil their desire to have a child.

There are two types of Surrogacy, Traditional and Gestational. The latter has been ideated in this bill. Gestational surrogacy refers to when assisted reproductive technologies are used such as embryo transfer and in-vitro fertilisation. In this form of surrogacy, the surrogate mother is not genetically related to the child. Additionally, there are two types of arrangements for the surrogacy to take place. Altruistic and Commercial. The former is based on when the surrogate mother cares for the couple, and out of that concern, she agrees to carry their child and receives no monetary compensation for it. She would receive no monetary rewards for her gestation and relinquishment of the child other than the necessary medical expenses. As for the Commercial form of surrogacy, the surrogate mother awarded monetary compensation other than the required medical expenses.[4]

Features of the Surrogacy (Regulation) Bill, 2020

  • It bans Commercial Surrogacy, including the sale, purchase of human gametes, oocytes, and human embryo. Under this bill, any form of monetary compensation received that is over the required medical expenses is considered illegal.
  • It pushes towards ethical Altruistic Surrogacy for the intending infertile married couple, between the age of 23-50 for females and 26-55 for males.
  • The couple seeking surrogacy should have been married for at least 5 years and should not have any other surviving biological child unless he/ she is suffering from any mental illness or a life-threatening disorder or fatal illness.
  • Under the said bill, only Indian couples can opt for Surrogacy. This includes NRI couples.
  • It provides for the implementation of national and state bodies for efficient regulation by performing the functions conferred under this bill. It regulates all the surrogacy clinics to conform them under the said bill.
  • It ensures that no child is abandoned under any condition and the child is entitled to all the rights and privileges available to a natural child.
  • Most importantly, it provides insurance of 36 months to the surrogate mother.

The above features are some of the key features of the aforementioned bill. Although the bill provides for efficient regulation of the Surrogacy industry in the country, it does have its fallacies. The bill provides for banning any form of commercial surrogacy. This characteristic can be considered to be debatable to say the very least.

What was the need to ban commercial surrogacy in India?

Earlier, i.e. prior to 2015, the surrogacy industry in India was vastly unregulated. The country even earned the reputation of being a “rent a womb” haven for couples without children. The bill seeks to ban all foreign applicants to bring an end to the period where “fertility tourism” in India was at its peak[5]. It is argued that the commercialisation of surrogacy often leads to the exploitation of vulnerable, lower-income women. It leads to the commodification of human life. Another reason that has been asserted is that the amount of compensation provided to mothers in foreign countries, prominently the US, has seen the vast difference of compensation, such as providing over $100,000 to surrogate mothers in the US[6] whereas providing as low as $25,000 to surrogates in India[7]

To illustrate the exploitation that surrogates are subjected to, there have been many cases where the embryo implantation has been more than the suggested limit. Clinics have implanted more than 5-6 embryos at a time in a surrogate’s womb when the limit is three. This leads to substantial health risks. There may be severe impacts on the liver, kidneys, and thyroid. Apart from this, surrogates in India have a lack of autonomy over their pregnancies. Their diets are controlled by surrogacy clinics. They have to stay in overcrowded hostels with other surrogates.

This bill has been modelled over the UK surrogacy regulations. In the UK, only altruistic surrogacy is allowed. However, the surrogate in the UK has the option to retain the child with herself if she pleases[8]. This is plausible even in states of the US too. But in India, the surrogate has no such option but to transfer the child to the intending parents.

Is banning commercial surrogacy the means to cease exploitation?

Undoubtedly, the exploitation of surrogates is extremely abhorrent. However, is an outright ban on commercial surrogacy the solution[9]? On a moral aspect, the concept of “rent a womb” can be considered deplorable. On a financial aspect, however, it is a tricky problem to contemplate. In India, unpleasant social situations often force people especially women to disreputable means of earning a living. Women may be forced into sex work or people may be instigated to sell their organs.

Given this scenario, it can be said that the life of an average Indian surrogate has been embroiled in poverty. To escape the shackles of poverty, women from these backgrounds, barring exceptions, have made an informed choice in being a surrogate. Another point to be noted is that surrogates have been paid a 10-year equivalent of their regular incomes[10]. So it can be said that on a financial note that commercial surrogacy has been a valuable source of income to surrogates in India.

Another argument to be taken into consideration is that a blanket ban on commercial surrogacy may lead to an underground business on this practice[11]. Compensation can be transferred in the name of “gifts” between the intending couple and the surrogate, which can be difficult for any official authority to track them. Lastly, research shows that, when compensated, the surrogate feels a psychological detachment from the foetus. Therefore, lowering the development of a bond with the foetus.[12]

Conclusion

Drawing an inference from the above arguments, it can be stated that regulation of the practice of surrogacy was absolutely necessary for the country. Having said that, we must acknowledge that a sweeping prohibition on commercial surrogacy is not the solution to curb exploitation against surrogates. There is no guarantee that surrogate women will not be exploited with this ban put in place. There exists a  chance of a surge in black markets in this industry. In case this arises, the problem of exploitation further increases.  Rather than an outright ban, what is required is a regulation on commercial surrogacy as well. Surrogacy is a complex subject in terms of social, cultural, physical, and biological connotations. Though there can never be a solid arrangement of the surrogacy practice, firm and security regulations are required on both forms of the practice. The ultimate choice must be at the discretion of the surrogate mother as she is most vital for this entire practice.


[1] Surrogacy (Regulation) Bill,2020

[2]Durgesh Nandan Jha, No law to regulate surrogacy industry – ET Health World ETHealthworld.com (2015), https://health.economictimes.indiatimes.com/news/industry/no-law-to-regulate-surrogacy-industry/47968879 (last visited Jun 15, 2020).

[3] Surrogacy in Contemporary India: Issues and Challenges, Dwarika Prasad. International Journal of Trade and Commerce-IIARTC July-December 2016, Volume 5, No. 2 pp. 319-328 ISSN-2277-5811 (pg. 320-328)

[4] Supra 1

[5] Saptarshi Ray, India bans commercial surrogacy to stop ‘rent a womb’ exploitation of vulnerable women The Telegraph (2018), https://www.telegraph.co.uk/news/2018/12/20/india-bans-commercial-surrogacy-stop-rent-womb-exploitation/ (last visited Jun 15, 2020).

[6] What is Commercial Surrogacy? , Surrogate.com, https://surrogate.com/about-surrogacy/types-of-surrogacy/what-is-commercial-surrogacy/ (last visited Jun 15, 2020).

[7] Priya Shetty, India’s unregulated surrogacy industry, 380 The Lancet 1633–1634 (2012), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)61933-3/fulltext (last visited Jun 15, 2020).

[8] Supra 7

[9]Gargi Mishra et al., Commercial surrogacy: Prone to misuse or should be allowed with regulations? ThePrint (2019), https://theprint.in/talk-point/commercial-surrogacy-prone-to-misuse-or-should-be-allowed-with-regulations/263710/ (last visited Jun 15, 2020).

[10]Nishtha Lamba, Why ban commercial surrogacy? @businessline (2018), https://www.thehindubusinessline.com/opinion/why-ban-commercial-surrogacy/article8124254.ece (last visited Jun 15, 2020).

[11] Supra 5

[12] Supra 10

Aditi Nemakal from Tamil Nadu National Law University

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