Surrogacy in India is estimated to be a $ 2.3 billion industry, but surrogate mothers are paid less than a tenth of what they get in the US. The mushrooming of IVF clinics, absence of a regulatory framework, and the availability of poor women willing to rent out their wombs has made India an attractive option for foreigners seeking a surrogate child. Several questions have been raised over the alleged exploitation of surrogate mothers, and over the need to safeguard their, the child’s, as well as the commissioning parents’ rights.
The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. Baby Manji was commissioned by Japanese parents (through an unknown egg donor and the husband’s sperm) and was born to a surrogate mother in Gujarat. The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognise surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India. This was the genesis of the Assisted Reproductive Techniques (Regulation) Bill, 2014.
The Indian government will not allow commercial surrogacy that involves exchange of money for anything apart from paying for the medical expenses for the mother and child. Thus, it will allow only ‘altruistic surrogacy’ — which, officials say, could in most cases involve a close blood relative.
In an affidavit to the Supreme Court last week, the government said it would henceforth “prohibit and penalise commercial surrogacy services” so as to protect the “dignity of Indian womanhood”, and to prevent “trafficking in human beings” and the “sale of surrogate child”. Only needy infertile Indian couples would be able to opt for surrogacy of the altruistic kind.
This line also excludes LGBTs, single men or women, couples in live-in relationships, as well as married couples who are proven to be fertile but choose to opt for surrogacy for reasons other than medical. The government’s view is based on the ethical stand that a child should not be the product of a transaction, and that motherhood should not be commodified. Also, the insistence on surrogacy instead of adoption is seen, from the gender-rights perspective, as propagating the patriarchal bloodline. The stand also emanates from health concerns such as the need for the child to be breast-fed for at least six months, or the issues faced by surrogate children born in India once they are taken by commissioning parents to countries that ban surrogacy — or those children who are abandoned due to deformities.
Officials argue that India remains one of the few countries that still allows the practice. There is a complete ban on surrogacy in Germany, Norway, Italy, Sweden and Singapore. Surrogacy, of only the altruistic kind, is allowed in Canada, in certain Australian states, New Zealand, the UK, Greece, Denmark and the Netherlands. In the US, some states allow commercial surrogacy, but in a highly regulated environment. The only European countries where surrogacy is entirely legal are Russia and Ukraine.
A 2013 survey by the Centre for Social Research along with the WCD Ministry showed 68% of surrogate mothers in Delhi and 78% in Mumbai, were housemaids by profession. The report said India had become a rent-a-womb destination and called for a rights-based framework where surrogacy would involve no monetary transactions barring for the medical costs. However it also explicitly said that the law should allow LGBT, single parents and unmarried couples to opt for surrogate children — the Bill, which is expected to be tabled in Parliament soon, has chosen to ignore this recommendation.
The Bill paves the way for the setting up of national and state boards for ART, and makes registration of ART clinics mandatory. Only a healthy, married woman between the ages of 23 and 35, who has a child of her own above the age of three years, is allowed to become a surrogate mother, with the consent of her spouse. The commissioning parents must bear all medical expenses, insurance, etc., and are legally bound to accept the custody of the child/children irrespective of any abnormality that the child/children may have, and whether the parents separate before the child/children are born. Violators face imprisonment of up to five years or a fine of Rs 10 lakh, or both, for the first offence. The Bill prescribes a minimum compensation for the surrogate mother.