Commercial Surrogacy: was it so wrong?

Booming business in Akanksha infertility clinic at Anand gave this Indian town a rather peculiar name: ‘The baby factory’ and the surrogates here are referred to as incubators working in this factory. India’s burgeoning ‘infertility tourism’ hinges on the ‘exploitation’ of these incubators. The complete surrogacy package including the cost of fertilization, the cost of delivery at a hospital, and the surrogate mother’s fee all combine to be about one-fifth of that in the US (The Guardian). Thus, India seems like an attractive destination for all infertile foreign nationals who are desperate for a child. Whereas for the poverty-stricken Indian women, surrogacy emerges as a way out of their misery and a means of achieving a better future for their kids – one that does not resemble their own. 

Since the legalization of commercial surrogacy in 2002, the industry has boomed tremendously reaching a $ 400 million market in 2012 (as per an U.N.-backed study by the Sama Resource Group) However, the several horrors that come along with surrogacy: sex selection, exploitation of surrogates, abandonment of a child and nonpayment of said compensation could not be neglected any longer. The Baby Manji Yamada case and Jan Balaz vs Anand Municipality were cases that exposed the loopholes in India’s surrogacy practices and brought surrogacy’s ethicality to the forefront. The commodification of the baby and surrogate’s body is often presented as an argument against commercial surrogacy. The ethical arguments surrounding commercial surrogacy have little merit since payments are made for a women’s services and not as a fee for control over another woman’s body. It may further be noted that this payment is supposed to be made despite miscarriages, further highlighting that it is remission for one’s labor and not the baby. 

 To combat the exploitative issues the Indian government introduced the Surrogacy Regulation Bill in 2019. The bill puts a complete ban on commercial surrogacy and allows only for altruistic surrogacy. To be eligible for altruistic surrogacy, the intending couple needs to obtain certificates verifying either partner’s infertility and need to be married for at least five years. A widow or divorcee woman between the age of 35-45 years can also opt for surrogacy. Unmarried couples, gay couples, and single fathers cannot seek surrogacy in the country. Furthermore, the surrogate mother needs to be of age 25-35 and can be a surrogate once in her lifetime.

The bill seeks to bring an end to ruthless practices and safeguard women. Nevertheless, it strips off women’s autonomy and takes away their reproductive decision-making rights. Despite the availability of sweatshop jobs, many women opted for surrogacy due to poor working conditions, longer hours, and sexual harassment at other workplaces. Given their predicament, women are making optimum decisions for themselves, and many a time that decision takes the form of surrogacy. For innumerable women, the money earned from surrogacy was a way out and the initial capital for starting a new life. Several surrogates had themselves expressed their dissatisfaction with the transnational ban (Publication at Harvard Kennedy School). With the ban on commercial surrogacy, the government is taking on a paternal role, however, it cannot be assumed that the surrogate mother cannot take real decisions for maximizing her welfare.

Commercial surrogacy could still be permitted in a more regulated environment such that women essentially have the option. Suggestions such as a minimum threshold price for surrogacy along with installment payments could have been incorporated. Furthermore, surrogates could be educated about the minimum basic threshold and charged accordingly for their services. Laws for payment of a said percentage of the compensation in case of miscarriage could have also been set up. This would safeguard the surrogate’s interest and ensure that she gets paid for her services despite the unfortunate turn of events. Regulatory authorities can be established at multiple levels who will oversee the fertility clinics and ensure compliance. A government website can contain lists of all clinics that are authorized to conduct commercial surrogacy and the intending parents can therefore contact them. This would legalize the process and cause fertility clinics to get themselves registered. However, the new law takes a different route for dealing with the exploitative practices that surrogacy comes bundled with.

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The views expressed in this article are the author's own.

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