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Would A Ban On Commercial Surrogacy Really Protect Women Or Take Away Their Choice?

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By Tabu Agarwal:

At a time when banning is considered the only solution to a problem, the Modi Government has done it yet again. The Supreme Court, with support from the ruling government is all set to ban commercial surrogacy in India, an industry that is worth $2.3 billion.

Image source: WordPress
Image source: WordPress

The curious case of baby Manji’s birth in July 2008, that made headlines, was possibly responsible for the amendments made in 2010 to India’s Assisted Reproductive Technology (ART) (Regulation) Bill.

However, in a shocking move, the Supreme Court has again brought out a revised Assisted Reproductive Technologies (ART) Bill to the table that is both a cause of debate and conflict. The proposed new law will allow surrogacy only for Indian couples and not foreigners. Moreover, only ‘altruistic surrogacy’ to infertile, needy married Indian couples would be provided after thorough investigation by competent authorities.

Altruistic surrogacy is when a surrogate is given no financial gain for carrying a child and only realistic out of pocket expenses are covered by the intended parents. Whereas, commercial surrogacy, which is the process in which a person or couple pays a woman to carry and deliver a baby, was always in controversy due to a host of complex medical, economic, ethical and legal issues that were open to abuse.

The business of commercial surrogacy in India is not unknown. Also known as ‘wombs for rent‘, India remains one of the few countries that still allows the practice, along with Russia, Ukraine, Thailand and so on. In India, about 25,000 children are born through in-vitro fertilization or the IVF technique. It is also the world’s no. 1 destination for surrogacy, but the sector goes unchecked and unregulated. The reason why this industry bloomed so rapidly in the country was because India became a cheap destination for foreigners wanting to use assisted reproductive technology. Poor women often used the opportunity as a means to earn their living. Also, local clinics promoted surrogacy arrangements because they were seen as profitable ventures. What is a cause of serious concern is the fact that can the ramifications that the ban would have on surrogate females and the industry prove to be counterproductive?

With the ban’s provision to keep gays and single people out of the surrogacy loop, paving way only for heterosexual married couples to avail the benefits of surrogacy, the entire law poses a serious threat to personal liberty and raises a question of gross discrimination.

Impoverished women who rent out their wombs in return for a handsome amount of money are generally the victims of an untold and unheard behaviour where they face exploitation, misery at the hands of unscrupulous clinics who cheat them and do not pay them the decided amount. They also run the risk of being physically exploited. Banning the practice will only result in it being carried out in a clandestine manner. Surrogacy as a reproductive technology is now too widely used and deeply entrenched to simply wither away in the face of a ‘ban’. In India, where there are no proper rights to protect the surrogates with the presence of an unregulated market, a ban will further encourage degrading treatment of the surrogate females.

Further, many women ‘choose’ to rent their wombs and consider the whole act and procedure as honourable and an opportunity to support themselves financially. The question that arises henceforth, is whether the government which was unable to lift them up from their present economic state is depriving them of this possible act?

The government, instead of banning commercial surrogacy should put in place proper measures that plug the regulatory gaps allowing surrogates to be exploited and fertility clinics to indulge in unethical medical practices. More stringent regulations should be introduced to stream out corruption and malpractices in the industry. Only couples who really need surrogacy after failed attempts at using other methods should be allowed to avail its benefit, in short, surrogacy must not be overused or abused. With a long history in India, challenging commercial surrogacy with a ban would be most certainly unwise and counter-productive.

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  1. GeaDGead

    After three failed pregnancies my husband and I went to Mumbai where I underwent IVFtreatment. Despite what my US doctors told me would be possible, at the end of my two weeks of injections, our surrogacy agency in India froze 9 healthy embryos for us. My heart is broken right now after hearing what India is doing to ban surrogacy. I have spent this past weekend in tears. I disagree with this ban. We currently have embryos in India and are awaiting our surrogate. Now what?

    I think that surrogacy in India gives rural woman an opportunity to make money. Banning surrogacy for foreign couples is not a solution to any problem. Banning just sweeps it under the rug, represses women into the black market, shames women further – all under the false guise of “protecting rural women”. It makes sure that whatever corruption that happens in India stays in India.

    We need to regulate not revoke. Surrogate mothers are a blessing and deserve respect, generous payment and excellent Heath care during pregnancy and post-pregnancy. Surrogacy is not shameful. Surrogacy is a gift and God bless all surrogate mothers for the kindness of their labor.

    Sadly, India is notorious for abusing women and denying them rights and India needs to learn to respect women – not just in the realm of surrogacy but in the bigger picture of their laws and culture. Surrogacy is legal in the USA. And the difference with the way the USA handles surrogacy and the way India handles surrogacy is that the USA insures that our surrogate mothers are well cared for during their pregnancies and post-pregnancy. As well, our surrogates are well paid. The work that surrogates do is a gift and surrogate mothers deserve to be treated with respect and care. It is this model of surrogacy that India needs to learn how to implement. Banning surrogacy does absolutely nothing to help women. It ignores the real and dangerous life that Indian women experience and it denies them an income. The way to help women is making sure they are cared for and that the money they make goes to them and is not stolen by their drunk husbands, greedy in-laws or by unregulated surrogacy agencies. A legal, monitored, and safe surrogacy law will help women.

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Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
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