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.
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.