COMMENTARY
Commercial Surrogacy in India
Bans, Altruism and the Women Involved
Dalia Bhattacharjee
Based on an ethnographic study
of commercial surrogacy in an
Indian city, this article highlights
some important issues that
require a nuanced understanding
of the process.
Dalia Bhattacharjee (dahlia05bhatt@gmail.com)
is a doctoral student at the Department of
Humanities and Social Sciences, Indian Institute
of Science Education and Research, Mohali.
Economic & Political Weekly EPW april 2, 2016
I
n late 2015, the Government of India
banned foreigners from having chil-
dren through surrogate mothers in
India. The government expressed its re-
luctance to allow commercial surrogacy,
while supporting altruistic surrogacy for
married infertile Indian couples. It is im-
portant to look into the effects of this
ban on the people involved in commer-
cial surrogacy. This article outlines the
gaps between the provisions of the latest
draft bill on assisted reproductive tech-
nologies (ART) in India and the ground
reality. It also highlights certain possi-
ble outcomes which may result from
such a ban.
On 4 December 2015, the Minister
of Health and Family Welfare, Jagat
Prakash Nadda stated in the Lok Sabha,
To prevent exploitation of surrogate mothers,
government does not support commercial
surrogacy for which the Department of
Health Research has drafted a comprehen-
sion legislation, Surrogacy (Regulation) Bill
vol lI no 14
which is under inter-ministerial consulta-
tions the government is very much aware
of the precarious condition of poor women
being lured to surrogacy (MHFW 2015a).
The comment does not leave any scope
to view women as actors who choose
to be surrogates, and only stresses the
exploitation of the poor women being
lured into the business. While the stat-
ed agenda remains to end exploitation of
women acting as surrogate mothers, the
discussions show a limited understand-
ing of the dynamics involved in the sur-
rogacy arrangements. I argue here that
while regulation of commercial surroga-
cy in India is required, it is being done
from the wrong end. Instead, what is
needed is a legal framework which takes
care of the needs (economic, physical
and emotional) of all the parties involved
in surrogacy services.
Examining Drafts of the Bill
The drafts of the Assisted Reproductive
Technology (Regulation) Bill and Rules
2008, 2010 and 2014were prepared
by a 12-member committee which inclu-
ded specialists from the Indian Council
of Medical Research (ICMR), medical
experts and representatives from the
Ministry of Health and Family Welfare
(MHFW). Legalising commercial surrogacy
27
COMMENTARY
in India, this bill stated that the women
acting as surrogate mothers would
relinquish their parental rights over the
children in the exchange of money.
Single parents were allowed to have
children through surrogacy services and
people of foreign origin were allowed to
seek surrogacy in India upon registering
with their respective embassies (MHFW
2015b).
There have been several debates and
discussions by feminist scholars and
activists regarding the drawbacks of the
various iterations of the bill. It has been
criticised for not having any clause deal-
ing with the protection of the rights of
surrogate mothers (Pande 2009a,
2009b; Qadeer and John 2009; Sara-
vanan 2010; Sama 2010; Menon 2012;
Majumdar 2013). The bill hardly pays
any attention to the health of the surro-
gate mothers. For example, there is no
stipulation in the bill which fixed the
maximum number of babies a woman
can carry in one pregnancy.
No Birth, No Pay
Chapter VII of the 2014 draft bill lays
down the rights and duties of the pa-
tients, donors, surrogates and children.
While certain laws are ambiguous in na-
ture, several other witness loopholes in
their implementation. Point 2b states,
If there are any complications that have arisen
during pregnancy (that is, Gestational Dia-
betes, Chronic Hypertension, etc) which are
likely to continue for the rest of her life then
it shall be covered appropriately under
insurance (PRS 2015: 43).
However, during my fieldwork in a
city in India1 in January 2015, the sur-
rogate mothers shared a story of the
death of one of their compatriots due to
swine flu. The surrogate and the baby
died in the delivery bed, and the family
of the surrogate mother was left in de-
spair and loss without any compensa-
tion. The story reveals the ignorance in
the articulation of the legal framework
towards the rights and interests of the
surrogate mothers and their family.
I witnessed another incident during
my field stay where a surrogate mother
failed to conceive twice during 10
weeks of her stay in the hostel and was
asked to leave. When I asked her if she
28
had been given any money for the time starting from signing of the agreement till
she was there and for the medication the child/children is/are handed over to the
commissioning parents (PRS 2015: 43).
she took, she simply said, why would
they be paying somebody who wasnt of However, the ground reality does not
any use to them? She was in a deep match the provision stated. I have
mental and physical crisis and left the witnessed the hustle and bustle in an
place in tears. The other women in the otherwise quiet surrogate house, at the
hostel said, we deal with this all the time of instalment payment in each tri-
time. This work is very risky and uncer- mester of the pregnancy. The surrogate
tain for us. We get lucky sometimes, mothers are often confronted with a de-
and some other times, we dont. lay in payment. Some of them even go to
The regulatory framework surround- the authorities to request payment on
ing surrogacy in India remains oblivious time, but only return empty-handed.
to these issues and too much attention is The gaps between regulation and im-
being paid to banning of surrogacy plementation need to be urgently addre-
services for foreign couples. I see the ssed, rather than putting another barrier.
restriction on surrogacy as a nationalist Though the present attempt of the gov-
project aimed at protecting the wombs ernment to ban this service for foreign-
of women of the country from any for- ers aims at ending the exploitation of the
eign impregnation. A move motivated by women acting as surrogate mothers, the
the discourse of the mothering body, as ban will only end up increasing the
a personal and pure space. Such a dis- exploitation of the women.
course fails to see the surrogate woman
as an individual with rights to make Livelihood Denied
choices regarding her own body. It does There are other apprehensions about
not recognise her participation in the the decision on this partial ban on sur-
surrogacy arrangement as a form of rogacy.
labour. My contention is that the repro- The industry has been estimated to be
ductive labour performed by the women of $2.3 billion as of 2012 (Rudrappa 2015).
before conception should also be ac- However, larger income shares go to the
counted for in the regulation as a part of doctors and medical heads, and some-
the labour process with provisions for times, the middlemen, leaving the sur-
due wage payment. rogate mothers at the lowest level in the
chain. The economic exploitation of the
Delay in Payments women acting as surrogate mothers is
Chapter VII in its point 60 (3b) of the evident. A majority of women opting to
draft bill states, be surrogate mothers come from fami-
lies below the poverty line. They prefer
Appropriate formula and mechanism shall
be developed under Rules for payment of foreign couples to the Indian ones as the
compensation to the surrogate mother and former pay better. In such a scenario, the
to transfer the funds to the bank account ban would inevitably reduce the earn-
of the surrogate mother at different stages ings of the surrogate mothers.
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During my ongoing research, most of
the surrogate mothers told me, yeh hu-
mari marji nahi majboori hai (We dont
do it out of choice, but compulsion). The
question of choice should be seen as a
contextual, political and contested sub-
ject. The lack or total invisibility of op-
portunities remains at the core of the
question of choice. The ban would take
away the possibility of earning a liveli-
hood that these women resort to, with-
out offering any other options to them.
Hazards of Moral Reprehensions
The grounding of commercial surrogacy
by the government on moral abstrac-
tions is worrisome. The governments
call to allow altruistic surrogacy restricted
to married infertile Indian couples is a
seemingly possible way to see women as
mothers, nurturers and caregivers alone.
In this view, the reproductive role of
women alone makes them true and
complete. Commercial surrogacy poses
a challenge as it allows women to utilise
their wombs to earn money which con-
tradicts imagining wombs as pure spac-
es. This, in turn, contests the sacredness
of the concept of motherhood as an insti-
tution. Altruism obliges women to fulfil
their duties as mothers and stereotypes
them as naturally mothers which
should not be interfered with by intro-
ducing commercial transactions.
Another concern is the possibility of
the ban encouraging the growth of a
hazardous underground surrogacy in-
dustry. Keeping in mind the enormous
business that the surrogacy industry
makes and the number of foreign clients
seeking surrogacy services, it is inevita-
ble that the industry would be pushed to
the underground. Examples of this na-
ture can be seen in the organ donation
industry. The commercial trading of
organ donation has been restricted in
India under the Transplantation of
Human Organs Act (THOA) implement-
ed in 1994. However, exploitation of the
organ donors is a common phenomenon
in the country. The black market for
organ donation in India is operating in
an acute manner. An estimate of 2,000
people are seen to be donating organs il-
legally every year (Tomlinson 2015).
People are even killed on operation beds
Economic & Political Weekly EPW april 2, 2016
for acquiring organs. These facts cannot
be overshadowed with the promise of
regulating such practices by banning
them. The banning of commercial surro-
gacy can lead towards a similar under-
ground and precarious market.
Another example to cite here is the
attempt of the government in 2013 to
restrict commercial surrogacy to married
heterosexual couples. Single persons, un-
married and homosexual couples were
not allowed to opt for surrogacy services
in the country. The ban had pushed the
surrogacy industry for homosexual couples
to Nepal. In the aftermath of the earth-
quake in April 2015, this phenomenon
came to the fore when babies born out of
Indian womens wombs were taken away
by same-sex Israeli parents to Israel and
the Indian surrogate mothers were left
behind in their weak conditions. Schol-
ars and activists reported the distress
the surrogates felt on being abandoned,
not by the intended parents, but by the
Indian government (Pande 2015; Ara-
vamudan 2015).
Concluding Remarks
Greater exploitation, the emergence of
unregistered clinics, increased involve-
ment of middlemen, decreased bargain-
ing capacity and lower pay for the surro-
gate mothers are some of the possible
repercussions of the new ban. There are
people who need organs for their sur-
vival. Similarly, there are people who
have desires for babies and those who
are in dire need of money. I am not argu-
ing for or against the banning of com-
mercial surrogacy. Rather, I am con-
cerned about the need of women who
act as surrogate mothers to be protected
against any detriment (physical, emo-
tional or financial) outcomes, and also
the vulnerable intended parents desires
to attain parenthood. The ideal way
might be to design laws that regulate the
practice and see to it that all the parties
benefit from it, without any ignorance
about their rights and interests. We need
a grounded legal approach as the need
of the hour which embraces an under-
standing that the women acting as sur-
rogate mothers are not merely desperate
poor women, but women who are digni-
fied actors in this whole process.
vol lI no 14
COMMENTARY
The present scheme of the govern-
ment seems to be adopting a path
which is pushing surrogacy in India
into a darker arena which can prove
more hazardous and risky for the women
involved.
Note
1 Maintaining the anonymity of the city is a de-
liberate decision.
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