Banning Surrogacy in India Will Drive It Underground

Will surrogacy ban not result in a flourishing black-market of bootlegged surrogate babies, asks Nishtha Gautam.

(In the context of the Union Cabinet approving the introduction of the Surrogacy (Regulation) Bill, 2016, The Quint is republishing a story from its archives. The article was first published on 10 November 2015.)

The Indian government is set to ban surrogacy for foreign couples much to the chagrin of these parenthood hopefuls, surrogate mothers and the doctors involved in the surrogacy process. The issue of surrogacy, particularly that of commercial nature, is a polarising issue across the world.

Even the developed countries stand divided on it. While many states in the US allow commercial surrogacy, France, Germany, Spain and Italy have banned all kinds of surrogacy. Some countries like the UK, Denmark and Belgium allow only altruistic surrogacy.

In the aftermath of the Indian Council of Medical Research’s recent letter to infertility specialists directing them against entertaining foreigners for surrogacy services, a strong demand for better regulations instead of a blanket ban has emerged.

While one may choose to ignore the moral strings attached to surrogacy, it is impossible to ignore the ethical issue of using the bodies of women from economically weak sections of society. It is naïve to assume that all surrogate mothers have a choice in the matter. As in sex work, women’s bodies are at the disposal of those who can afford to use them. Even if the complex issue of choice and agency could be resolved, women’s health opens a Pandora’s Box of contradictions.

Medical Altruism

In a country like India where maternal mortality rate is alarmingly high – around 140 deaths per 100,000 live births in 2015 – surrogate pregnancies are a multifaceted matter of feminist concern. Surrogate mothers at certified centres are usually beneficiaries of good prenatal and antenatal care paid for by the intended parents.

There are hardly any studies yet on the impact of surrogacy on the number of natural pregnancies for the mother. Does it result in lesser number of ‘own’ children for the surrogate mother? If yes, birth control tangentially linked to surrogacy is a positive aftermath. Additionally, after being exposed to good healthcare services the surrogate mothers may aspire, and thus work towards it, for similar conditions to birth their own children.

Nevertheless, the above positives are not only linked to the assumption that surrogate mothers have agency but also do not offset the emotional ramifications of the process. Surrogacy is at par with organ donation by living people when it comes to medical altruism. Commercialisation of the two needs must be handled with utmost care to save the vulnerable sections of society from exploitation. However, to assume that it is only foreigners that are suspects is a wrong premise.

Medical Tourism

Medical tourism is a reality in India and cheap surrogacy is a big factor for its growth. The government needs to take an informed decision on banning surrogacy for foreigners with due consideration to all the aspects: medical, social, legal and ethical.

Another important question that emerges from the current disposition of the government is: will the ban ultimately lead to a universal criminalisation of surrogacy in future in India? How will this go down in a country obsessed with heirs?

Ancient India saw the culturally sanctioned practice of niyoga for childless couples. Such is our desire to reproduce. Will the ban, and not strict regulations, therefore not result in a flourishing black-market of bootlegged surrogate babies? Will it not further endanger and dehumanise women who lend their wombs? Surrogacy is not child’s play for the governments.

[The writer is Associate Fellow (Gender Studies), Observer Research Foundation]