Author and ex-academic, Delhi University
LAST month, the Lok Sabha passed the Surrogacy (Regulation) Bill, 2016, which aims to ban commercial surrogacy so as to protect women from exploitation. It does, however, allow altruistic surrogacy for infertile Indian couples, but only by a close relative, although this term is not defined.
Altruistic surrogacy is both gestational and traditional. In the former, pregnancy results from the transfer of an embryo created by in vitro fertilisation (IVF) in a manner that the resulting child is genetically unrelated to the surrogate. In the latter, the surrogate is impregnated naturally or artificially, but the child is genetically related to her. Single persons, homosexuals and live-in couples cannot avail of surrogacy. Couples who already have children are not to be allowed to avail of it. Foreigners and NRIs also cannot commission surrogacy.
According to the Thomson Reuters Foundation, India’s commercial surrogacy industry in 2017 was estimated to be worth $2.3 billion annually. It dates back to 1994 and acquired ‘legal’ status in 2002. It has been banned in countries such as Australia, Canada, Italy, Germany, Switzerland, Greece, France, Spain, Sweden, Norway, Netherlands, New Zealand, China, Singapore and Vietnam. Countries that permit surrogacy are Malaysia, Thailand, South Africa, Guatemala, Russia ,Ukraine, and some states in the US, but even there it is restricted and is dealt with very strict guidelines.
Commercial surrogates mostly come from economically vulnerable households. Booked for nine months, their payment is staggered or stretched over and made according to their ‘performance’. The contract is usually signed in the second trimester of the pregnancy. The surrogate does not even know when she signs the contract or what it contains as many are unable to even read it.
A 2013 study conducted by the non-profit Centre for Social Research found that 88 per cent of surrogate mothers interviewed in Delhi and 76 per cent in Mumbai did not know the terms of their contract. In fact, 92 per cent of those in Delhi did not even have a copy of it. Today, surrogacy contracts typically exclude the surrogate herself and are usually between the clinic and the commissioning parents. Surrogacy degrades a pregnancy to a service and a baby to a product.
The surrogates, or rather their husbands, are contacted by the agents who work for clinics. And the lion’s share is taken by middlemen who connect women with the clinics. These middlemen — not formally affiliated with clinics, which usually pay them clandestinely — are largely invisible on paper. One woman complained that despite promises she was left with barely Rs 1,300, which was not even enough to pay for her eight-year-old son’s school fees.
It is the surrogate who has to take in her stride the extreme uncertainty and material cost of the repeated failures which involve a painful procedure. The contracting party has no obligation towards pregnancy loss, maternal mortality, other health risks, post-natal care and recovery of the surrogate mother. She has to tolerate invasive clinical procedures pertaining to the transfer of a large number of in vitro embryos or foetal reduction if it is undesired sex or an unwanted multiple pregnancy. The risk of miscarriage is two to three times higher than in normal pregnancies as repeated implants are frequent. Heavy medication, multiple embryo transfers, multiple gestation and foetal reduction can have serious consequences. Surrogates also risk exposure to sexually transmitted diseases. Pre-pregnancy procedures are not counted in the nine-month ‘employment period’.
A surrogate, it is claimed, earns in one year the equivalent of 3 to 15 years of income. This ‘high’ income is calculated from the ‘low’ income of her household/husband. The price advantage is attributed to the lower cost or standard of living, leaving the surrogate with huge surplus. It is the poverty of the party concerned that makes the payment look ‘high’. Women who carry children for Indian couples make between Rs 80,000 and Rs 2 lakh, whereas those who work for foreign couples can earn up to Rs 5 lakh. This price is far below what the foreign visitors would pay in their own countries.
Indian feminists/activists have been alarmed by the onslaught of commercial surrogacy. Their objections emanate primarily from their concern over the fact that women have no choice in this matter. Their reproductive capacity is totally in the hands of men, controlled, in fact abused, by them for their own benefit. It is a kind of baby-selling for money. Treated as a ‘'breeder’, her reproductive capacity is sold and re-sold as a commodity. Women are pressured into surrogacy as a way to alleviate economic pressures at home.
After completing their families, they are required to reproduce for commercial purposes. The money so earned is pocketed by the husband, who squanders it. One woman said she agreed as she desperately needed Rs 3 lakh to repay the loans her husband had taken. There are instances where even while she has not borne children of her own or her family is not complete, she is coerced into producing for others. This takes a heavy toll on her health and life. Many cases can be cited of the gross exploitation in this trade. There are are also instances of abuse such as foreign parents neglecting to pay the surrogate or abandoning the newborn after learning of birth defects etc. For example, an Australian couple abandoned one of their twin babies born to a surrogate in Delhi because they already had a child of the same sex.
The practice of commercial surrogacy is fraught with many pressing dilemmas that go much beyond the binary of commercial versus altruistic surrogacy. The question is whether this initiative by the government will be able to solve the problem. Despite heavy penalisation and imprisonment, the danger of this ‘lucrative’ practice going underground is very real. What about the surrogates? A ban does not address the situation that causes women to enter surrogacy arrangements. Should we not pay attention to that?