Why India needs to reconsider its stand on banning surrogacy options for foreign couples

The Centre’s plan to ban commercial surrogacy and prevent foreigners from having children by surrogate mothers in India, merits reconsideration. While the State must intervene to ensure that women do not opt for becoming surrogate mothers at the expense of their health, and that they are not tied down by unfair contracts, the move to ban commercial surrogacy is unrealistic and intrusive. Why stop a woman in dire need of money from offering to bear a child, and a couple desperate to have children from paying the money to such a surrogate mother? Can the State meet the financial needs of the potential surrogate mothers or alleviate the emotional trauma of the childless couple? While the reasons for the government’s proposal to ban commercial surrogacy are not known, there are sections within the government that are uncomfortable with the “surrogate capital of the world” tag India has acquired.

For many, monetisation of the womb is an affront to the “sanctity of motherhood”. There are other critics who find the idea of “renting” of an Indian womb for foreigners to be offensive. There are still others who view surrogacy as an avenue for women who do not wish to subject their bodies to the rigours of pregnancy. However, this form of deification of the child-bearing ability and Indianness contravenes a woman’s sovereign right over her body. It is a fact that commercial surrogacy is banned in most developed nations. However, the moot question is whether the Indian government can consider itself and its women to be on an equal economic footing as these affluent nations. The proliferation of commercial surrogacy in India over the years is a stringent comment on our society where disadvantaged women have to rely on such risky procedures to earn valuable incomes for their families.

Given that the government is expected to allow altruistic surrogacy for Indians, one wonders how the State will ensure that no undisclosed financial transactions take place between a childless couple and a surrogate mother.

There will be altruistic surrogates who would be willing to devote close to a year of their life to help childless couples, without receiving adequate compensation. In effect, the government’s proposed ban will drive the business underground and take the wind out of the regulations.

For too long, the government has toyed with various drafts of the Assisted Reproductive Technology (ART) Bill without enacting a law. At present, the guidelines issued by the Indian Council for Medical Research (ICMR) govern the accreditation, supervision and regulation of ART clinics. Currently, foreign couples wishing to go for surrogacy must visit India on a tourist visa, they must submit several documents, get certification from ICMR, and then apply for medical visa to complete the eight-month-long process. An earlier draft of the ART Bill had allowed commercial surrogacy — even for gay couples — after the Delhi high Court decriminalised homosexuality. The draft bill also specified lower and upper age limits for surrogate mothers at 22 and 35 years respectively, besides restricting the number of births to five including the surrogate mother’s natural children. However, the ART drafts were panned by activists for not having adequate provisions to effectively regulate and monitor consultancies, surrogacy agents, surrogacy home operators and law firms involved in offering and promoting ART and surrogacy services. Now that the new ART regulations will stifle the surrogacy industry, one can expect both ART clinics and activists to raise the banner of protest. Ultimately, those who seek to curb surrogacy must understand that there are many women who cannot give birth because of infertility and other medical conditions. There are also the women who struggle to feed their natural-born children and repay debts. Help the women, don’t stigmatise them.