INDIA IN TRANSITION. Why ban commercial surrogacy?

In mid-October, the Supreme Court raised questions against the practice of commercial surrogacy. Later that month, the Centre responded with a ban on foreign couples hiring surrogates in India, permitting only altruistic surrogacy for infertile Indian couples. Although these changes are not surprising given the recent ban on commercial surrogacy in Thailand and Nepal, the justification of such a move needs greater scrutiny. Media frenzy on high profile cases of babies being stateless and parentless, such as, Baby Manji in India (2008) and Baby Gammy in Thailand (2015) had exerted immense pressure on the Centre to take the “right” decision. The resulting ban is an expression of the government’s reservations on the burgeoning business of surrogacy in India.

India had become an international hub of commercial surrogacy. While the Indian Council of Medical Research (ICMR) estimates the business to be worth $450 million, the most widely used “mythical value” for this unregulated market is $2.3 billion. Consequently, it was referred to as the “pot of gold” by the Law Commission of India (2009). Low costs and convenient regulations (such as having the name of commissioning parents on the birth certificate and keeping surrogates under constant supervision for nine months in a hostel) attracted intending parents from around the globe.

Is it exploitative? The Indian government has banned commercial surrogacy on the grounds of exploitation of poor, needy women. Researchers have chalked out diverse reasons for cross-border commercial surrogacy to be exploitative — moral, financial and emotional. It is considered morally reprehensible to allow poor fertile women from the global south to “rent their womb” for rich infertile women from the global north. As an extension of this, some have even described it as modern-day slavery and a mockery of motherhood.

On the financial aspect, it is difficult to assess whether surrogacy is really that bad an option in a country where unpleasant social situations force women to unwillingly become sex workers or poverty induces people to sell their organs. Given that the life of an average Indian surrogate is mired in poverty and inequality, arguments of financial exploitation can sound rhetorical and borrowed from the West. Besides, the argument is relative, and renders the exploitation theory weak at a policy level. Commercial surrogacy in India supported thousands of childless couples, generated revenue via medical tourism, and was a valuable source of income for surrogates.

Moreover, surrogates were paid 10 years’ equivalent of their regular income which challenges the exploitation argument. Barring exceptions, the women are not forced into surrogacy and are aware of the financial aspects of the contract, making it an informed choice. However, compared to the US, where a surrogate is paid as much as 50 per cent of the total cost, in India, the surrogate receives approximately 20 per cent (or less). Therefore, the case for doubling the share of total costs for surrogates is compelling.

A further dimension However, exploitation has another dimension. It can also be emotional, stemming from factors related to informed consent, dignity of reproductive labour, and the psychological well-being of the parties involved. From that standpoint, undoubtedly, the structure of commercial surrogacy in India has been anything but satisfactory. Aspects such as surrogates not knowing the number of embryos inserted or aborted, not having a say in wanting to see/meet the baby , not even being aware of the nationality of the intending parents, and not receiving psychological counselling are undoubtedly tantamount to exploitation. Considering these aspects, policy-level intervention is a welcome step. However, a ban on commercial surrogacy will not provide a solution to these issues.

From a monetary standpoint, “selling a womb” or “buying a baby” raises many ethical questions. Nonetheless, one wonders if removing the payment aspect makes it more “exploitative”. While the Centre has voiced its assent to altruistic surrogacy — the surrogate does not receive financial incentives above and beyond the required basic expenses of bearing a child — for infertile Indian couples, it has its own plausible limitations. First, there is no guarantee that rich, infertile couples would not exploit poor, fertile women. Second, research suggests that receiving “payment” creates a psychological detachment of the surrogate from the growing foetus. Therefore, it can be surmised that the possibility of developing a bond with the foetus could be higher in altruistic surrogacy. Third, it is difficult for any official authority to track the “gifts” being exchanged between the parties involved in the name of “compensation”. Lastly, altruistic surrogacy could also put voiceless, oppressed women in a highly vulnerable position, further disempowering them.

There are other contentious issues. For instance, would the Indian government, like in the UK, allow the surrogate to keep the child if she desires? Whose name would be written on the birth certificate — the surrogate’s or the intending parents’? What would be the guidelines governing “disclosure” and “relinquishment?” This opens up a plethora of questions that need to be addressed.

Psychological impact It is important to understand the levels of psychological distress a surrogate faces upon parting with the newborn. A UK-based study found that surrogate mothers are able to detach themselves from the newborn. Such detachment finds expression in these women “successfully” seeing themselves as carriers of someone else’s baby. My own research has revealed that most of the surrogates display a sense of psychological distress at their inability to see the newborn and the intending parents, preventing them from developing a “sense of closure” following the surrogacy arrangement. Therefore, it is important that the new policy equips surrogates with a voice of their own. Research also suggests that surrogates feel an ease in separation when they know where the child is going. This makes for healthy interactions (at least during pregnancy and briefly after delivery) between the intending parents and the surrogate, so crucial for a “successful” surrogacy arrangement.

Surrogacy is exceedingly complex in its social, biological, cultural and psychological implications. There is no unanimity over an ideal surrogacy arrangement. The practice in any part of the world is, admittedly, not without loopholes, both in its commercial and altruistic forms. While both practices require intense regulation, the feasibility of implementing onerous regulations needs a healthy dose of realism in the Indian context. A blanket ban does not address the real need and could simply drive the surrogacy market underground, making it worse for all concerned.

The writer is a doctoral student at the Centre for Family Research, University of Cambridge. This article by special arrangement with the Centre for Advanced Study of India, University of Pennsylvania

COMMENT NOW