India Has the World’s Largest Surrogacy Services. Why Are They Headed for a Ban?

Protecting women's rights or invalidating their agency? The proposed surrogacy ban is doing more harm than good.

India provides the world's largest surrogacy services. Why are they still headed for a ban?

(Image: The Quint/Erum Gour)

Laxman Utekar’s latest film, Mimi, revolves around the story of an Indian girl who agrees to be an infertile American couple’s surrogate and help them become parents. The main character, played by Kriti Sanon, does this in exchange for a pre-established amount of money (Rs 20 lakhs), which is paid to her by the couple, i.e., the intended parents. While this is the plot of the movie, in India, this process is headed for a possible ban.

In technical terms, the service Mimi is offering to the American couple is called “commercial surrogacy,” where a woman agrees to birth an unknown client’s child in exchange for money. This practice is currently proposed to be banned in India under the Surrogacy (Regulation) Bill 2020, with an exception of "altruistic surrogacy" where the mother is a known “close relative” (remains undefined in the bill) of the couple and does not charge any money for her service as she is doing it out of her own love and affection for the intended parents.

However, in a country where commercial surrogacy is an estimated $6 billion industry, is it best to take efforts to regulate it and protect the parties involved or just ban the whole occupation altogether?

The Upside for Surrogates

Women from all over India earn a lot of money by engaging in commercial surrogacy, especially when the intended parents are from countries other than India. The main reason why these parents choose India is because methods of assisted reproductive technology (ART), such as surrogacy, in-vitro fertilisation (IVF), and so on, are much cheaper here than in their respective countries.

The intended parents aren’t the only beneficiaries. Most surrogates belong to low-income households, and work as domestic workers, construction workers, hotel and restaurant employees, midwives, etc. Most of them take up surrogacy since it provides them with a huge inflow of cash in a short period of time, something that would not have been possible at their regular jobs.

A study of surrogates in the state of Gujarat found that women there would earn between Rs 1000- Rs 2000 and a maximum of Rs 3000 per month at their regular jobs. Conversely, they could earn anywhere between Rs 1,50,000- Rs 6,00,000 by being a surrogate once.

It is crucial to note that this money can be life-changing for women who are looking to secure their future and build a life for themselves, either by educating their children, setting up a business, or even building a proper home.

What Comes in the Way

Most intended parents contact agencies and clinics that then select the surrogates. In several cases, the intended parents haven't met the surrogate before at all; it is the agency that approaches a potential surrogate. These agencies or middlemen might sometimes end up taking advantage of the surrogate by paying her less than contractually stipulated, and keeping most of the money for themselves.

In Surat and Jamnagar especially, almost all women got these jobs through an agent. Due to the lack of an educational background, surrogates are more prone to exploitation and underpayment. Most of them don’t even hold a copy of the surrogacy contract they have signed. Less than 3 percent of surrogates in Gujarat actually possess a copy, which makes it very easy for IPs or clinics to make change in their payments, not provide them with the care they need, and make just about any modification to the contract without consulting the surrogate.

The payment for the surrogate is usually not fixed, and is decided by the clinic. If a surrogate works with a clinic that is not reliable, she ends up earning a very measly amount for her service. There have been cases where an intended couple pays a clinic Rs 12 lakh, and the surrogate only ends up earning Rs 40,000-- and such cases are not uncommon.

Moreover, contracts often don’t have any mention of insurance or coverage for emergency needs, or even coverage for any postpartum care the surrogate might need. She is left of her own accord after she relinquishes the baby, and all of the above issues occur because of one larger issue: a lack of regulation.

What the ban on commercial surrogacy has essentially done is neglect the needs of these women who are willing to take up this job, and by encouraging altruistic surrogacy, the system actually ends up inflicting more pressure on the close female relatives of intended parents, because now, legally, she is the only one who can help her family.

A woman who might want nothing to do with motherhood might actually have to go through the whole process whereas a woman who is readily available for the same job will lose out on an opportunity to make good money.

“Of course it should be a willing woman. You should not force anyone; the surrogate has to voluntarily understand the procedure,” points out Dr Nayana Patel in an interview with TIME Magazine. A fertility specialist and founder of Akanksha Hospital, one of the largest surrogacy clinics in Gujarat, Dr Patel has been at the centre of many debates and discussions around the ethics of commercial surrogacy. “But if she comes, stays for nine months, gives the baby and in return is not compensated in any way, how will it work? Why would anyone do this for free?” she adds.

Does surrogacy commodify wombs?

One of the strongest debates against surrogacy has been about how its commercialisation provides “wombs on rent” and how this treads dangerously closely to an Atwood-esque world. But I would like to argue that as long as regulation is in place, and clinics adhere to them and provide surrogates with the care they need, this occupation can be as clean as any other.

There is a very negative connotation behind providing one’s womb for someone else’s baby, and it is entrenched in our bias towards traditional reproductive practices, and how anything other than that is simply unacceptable. But if you view it as one person with the means of giving someone what they want and getting what she needs in return, it is nothing but a simple barter.

Most couples who opt for surrogacy belong to a wealthier strata of society. Because of this, some arguments even state that a low-income surrogate dealing with a wealthy family might be up against a power struggle that is rooted in classism. But women from marginalised backgrounds have been facing the brunt of this class struggle in any jobs they take up that involve interactions with the upper class, be it domestic work or any other work in the informal sector. It is far from ideal, but to bring up an argument of this sort only in cases of surrogacy where women have the opportunity to earn a fortune seems regressive.

In fact, ethnographic studies have shown that both IPs and surrogates view this whole process as a "gift" that they are grateful for and not as one party being more superior or inferior than the other.

Sivakami Muthuswamy, the Chairperson of the Centre for Health and Social Sciences at Tata Institute of Social Sciences (TISS) has remarkably noted a crucial aspect of why commercial surrogacy brings more value in the lives of women. She agrees that the choice to become a surrogate is rooted in the crippling pressures of poverty, and in an ideal world, no woman would ever have to make a choice like this. But in an ideal world, no one would even have to choose to work in a sweatshop, engage in sex work, or any other job that is so physically and mentally taxing.

However, this world is far from ideal, and particularly in the case of surrogacy, these women are acting out of their own free will to increase their welfare. They are working towards their upward mobility in society and are doing their best to uplift themselves. By assuming that all women in these jobs are oppressed, we are invalidating their agency and their judgement to make a choice for themselves.

So, instead of banning such life-changing occupations and encroaching upon their right to make a choice, governments could be of a lot more assistance if they used the law to empower these women with education and free will, neither of which requires a ban on commercial surrogacy.