No more Wombs for Rent

The lack of provisions to regulate surrogacy has so far made it easy for the rich and powerful to commission poor and illiterate women to be surrogates, despite the perils associated with pregnancy. The draft Surrogacy (Regulation) Bill is undoubtedly a step in the right direction, yet its provisions are subject to debate
By Dr A K Agarwal

India’s draft Surrogacy (Regulation) Bill 2016 has sparked debate over the government’s role in reproduction. The Union Cabinet has approved the Surrogacy (Regulation) Bill, 2016, which is aimed at curbing unethical and commercial practices and preventing the exploitation of poor women as substitute mothers.
The Bill seeks to comprehensively address the issue of surrogacy in India. In India, a surrogate mother often bears the child for a price. In surrogacy, a woman carries a child to term for its intended parents via different fertility techniques, including IVF implantation. She is compensated for carrying the child, hence the term is described as commercial surrogacy.
The bill proposes a fine of Rs 10 lakh and jail terms of up to 10 years for violations. Many IVF specialists, while welcoming clearer guidelines for strict punishment, have frowned upon the proposed restrictions and some have even called it an attempt to impose a certain religious or moral ideal in a secular country.

Scary scenario
Commercial surrogacy was allowed in India for the first time in 2002 and has since grown into a massive industry within the medical profession. While no clear economic numbers are available, a World Bank study conducted in 2012 estimated the surrogacy business to be worth almost $400 million a year, with 3,000 fertility clinics across India which has also presented a scary scenario.
However, India is on course to ban commercial surrogacy and disallow foreigners and non-resident Indians. The legal complications with regard to commercial surrogacy came to the fore for the first time in 2008 when a Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. Thus the child was born legally parentless as well as without citizenship.
Though the child was finally handed over to her grandmother, it opened questions about a practice that had continued unabated for a number of years. The culmination of these questions resulted in India’s draft Surrogacy (Regulation) Bill that was approved by the Cabinet in August 2016.
The lack of provisions to regulate surrogacy, which was legalised here in 2002, made it easy to commission poor and illiterate women to be surrogates, a practice that put many of their lives at risk, according to activists and researchers. Some surrogates reportedly rented out their wombs more than once despite the perils associated with pregnancy.

Raising doubts
Though the draft Surrogacy (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India many eyebrows were also raised over the outcomes of the expected law.
However, if anyone still has any doubt about the approved Surrogacy Bill, the External Affairs Minister Sushma Swaraj, who headed the Group of Ministers that drafted the bill, clears the air. “We can say this doesn’t go with our ethos,” she said to explain why certain populations, including gays and lesbians, were barred from surrogacy. Foreigners have to stay out, she added, because “divorces are very common in foreign countries.”
She also took a dig at Bollywood celebrities, though without naming them, who have had children through surrogacy. “I am pained to say that the procedure that started as a necessity has become a hobby of sorts. This is not a thing for pleasure… it has become a fashion these days,” she said. Famous Bollywood actors Shah Rukh Khan and Aamir Khan are among those who have children through hired wombs, boosting the popularity of surrogacy in India.
“Permission (for surrogacy under the bill) may be given for necessity. However, there is no permission for cases in which the wife does not want to go through labour… since you make a poor woman go through labour pain instead,” mentioned Swaraj.
Her comments and the discriminatory clauses came in for sharp criticism, especially from liberal quarters. The outrage over government’s decision as to who can, or cannot, have a surrogate baby has taken the centrestage, while the issue of surrogate mothers seems to have taken a backseat.
Backers of commercial surrogacy have argued that banning it totally will not help the cause of surrogate mothers. The industry will go underground, making the surrogates even more vulnerable. On the contrary, they say, if it is allowed with checks and balances, the business will generate income for very poor women and their rights will be protected.
Surrogacy vs gainful employment
That regulation will save the women from exploitation is perhaps a simplistic assumption. Surrogacy cannot be seen as a gainful employment. Pregnancy is fraught with risks and women take it up only when forced by their circumstances.
In 2012, a surrogate mother died in Gujarat just after giving birth to a premature baby of an American parent. In an industry centred on the baby, the surrogate mother is seen as little more than a rented womb.
True, women choose to become surrogates and risk their lives. They are not forced. They are lured by the large sums of money—sometimes as big as what they earn in 15 years working as maids.
Looking at this scenario, there emerges a flurry of questions: can large monetary compensations outweigh all concerns—the physical and psychological trauma of these marginalized women? Can the choice of the surrogate mothers be seen as an empowered decision? Legislation may help, yes. But given India’s poor track record in compliance to rules and regulations, how much will illiterate women be able to gain from it? Who will empower them to do so?
And, the only one answer to all these questions is: surrogacy cannot be seen as a gainful employment. By way of example, organ sales are also banned in India; only kidneys can be donated, that too only by relatives. Yet there’s a thriving kidney racket in the country that relies on duping and coercing poverty-stricken villagers. Likewise, surrogacy can take the illegal route, while remaining legally “altruistic” on paper.

Ethical dilemma
For one thing, the bill makes only married couples eligible for surrogacy – no single parents, live-in couples and gays, please. The couple must certify that one of them is medically unfit to reproduce naturally. Those who have biological or adopted children will not be eligible for a surrogate, a point emphasised by external affairs ministry.
In the process, however, the bill proposes to narrow options for those wanting children and shuts out an income-earning opportunity for women as surrogate mothers. But babies have to be registered. Unlike black money, there cannot be undeclared children. While pregnancies can be kept secret, as many Indian surrogates do for fear of stigma, babies cannot live secretly. So, monitoring the genesis of every baby should be possible, in theory at least, given that there is a mechanism in place to register every birth. But who will do it?
More than the legalities, it is the ethical dilemma that must be first addressed. The issue of commercial surrogacy is complex and it is only essential for the government response to be nuanced. Imposing sweeping ideas in the name of ethos dilutes the core issue.

(The author is Professor of Excellency,Medical Advisor, Apollo Hospital and former Dean, Maulana Azad Medical College, New Delhi)