Regulate surrogacy by all means, but in the right manner

Sensationalists like to believe that commercial surrogacy is always, and necessarily, exploitative; that altruistic surrogacy is not; and that those who commission surrogacy do so as they are either too wealthy, self-interested or body-conscious to bother producing their own children.

But the fact is, there is an unprecedented demand for Assisted Reproductive Technology around the globe for reasons including the increasing incidence of infertility.

Against this backdrop, the Surrogacy (Regulation) Bill, 2016, was passed by the Lok Sabha on December 19, 2018.

On a positive note, the Bill seeks to regulate surrogacy, prohibiting it for lifestyle purposes. And towards this purpose, it outlines the constitution of a “District Medical Board” providing: a road map concerning the parentage and custody of the child to be born through surrogacy; constitution of a multi-level Surrogacy Board; defining an age limit and conditions to be a surrogate, besides including insurance for surrogates.

But the Bill has pitfalls, which if modified or altered, can pave the way for India to have a one-of-its-kind regulation that could be a benchmark for other countries to emulate.

For instance, some surrogates may have been subjected to disturbing levels of exploitation in their employment. This is, however, unsurprising, given the labour exploitation seen in all unregulated industries.

Many of these women have experienced equally, if not more, oppressive conditions in their previous occupations as live-in servants, nannies, or workers in toxic industries — will such employment also be banned now as unacceptably exploitative?

Many valid reasons

Global studies have shown that some women enjoy surrogacy and find the act — gifting a child to another — to be more meaningful than other forms of labour. Why then should these women be prevented from undertaking such work? Here, the legislative responsibility is not to ban their right to choose but to ensure that they are fully protected from exploitation while in that employment.

Also, there are many women who are born without a uterus, have a damaged uterus owing to tuberculosis, have repeated IVF failures or repeated miscarriages. There are also women with medical conditions such as hypertension and diabetes or renal dysfunction, which make pregnancy risky for their lives. These are genuine indications for surrogacy. What option would these women have if surrogacy is banned?

Besides, as women increasingly get married in their late 30s and 40s, it would be unreasonable to wait for five years and have a baby because of the clause in the proposed Bill (minimum five years of marriage).

The requirement of an altruistic arrangement is also unreasonable. The Bill requires that the female surrogate be part of close family. This is contrary to prevailing practices and creates conflict with the fundamentals of relationships in an Indian society.

The Bill says an Indian woman of 25-35 years with at least one pre-existing child, who is a “close relative” of the intending couple can undertake an altruistic surrogacy on their behalf. “Close relative” is not defined, but one assumes this implies a sister or sister-in-law.

The Government is taking steps to eradicate dowry and the Beti Bachao Beti Padhao campaign is a flagship programme.

But this Bill works against it by encouraging dowry that is more extortionist in nature than demanding money. It paves the way to encourage secret financial arrangements and malpractices.

We exhort overseas Indians to invest in a growing economy, why then are we depriving them of medical services such as surrogacy in our country?

Also, given the changes with regard to Section 377, how can a same-sex couple (male) have children without a surrogate mother? Do we deprive them? It would be a human right violation.

Surrogacy is a win-win for all. We have seen surrogates having life-changing experiences with the money they get as it helps improve their own children’s future.

The writer is Medical Director and head of the IVF unit, Akanksha Hospital & Research Institute, Anand, Gujarat

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