Updated: September 14, 2016 12:36:26 am
On August 24, the Union cabinet cleared the Surrogacy (Regulation) Bill, 2016, banning commercial surrogacy in the country. The bill is based on the recommendations of the 228th Law Commission Report of August 2009 and modelled on similar regulation in the UK.
In India, the neo-liberal state has established, through state policy, a network of institutions that cater to medical and reproductive tourism.
This has involved the provision of a range of incentives to the private sector in health — land at throwaway prices, customs duty exemptions for the import of sophisticated medical technology and loans at low interest rates. The 1980s witnessed the emergence of a corporate health sector which became increasingly influential in policy setting. Studies reveal that these hospitals did not provide the services they had committed to deliver. For example, many did not earmark beds for the poor. A committee headed by Justice A. S. Qureshi found that private hospitals violated several of their terms of agreement.
The Union government sponsored work on IVF at the Institute for Research in Reproduction in Mumbai in 1982. This initiative was soon taken over by the booming private sector in health, especially the corporate sector. According to the Indian Council of Medical Research, there were 250 IVF clinics in 2005. The Indian Society for Assisted Reproduction has a membership of more than 600. These clinics have now moved to smaller cities and towns to exploit the market in these areas, and indeed, to create them. India emerged as a destination for people wishing to have assisted reproduction as well as for those wanted to hire surrogate mothers. The surrogacy business in the country is said to be worth $445 million. The cost of hiring a surrogate in India ranges from $6,000 to $8,000, as against about $80,000 in the US.
Although there are wide variations, the cost of IVF in India is about $500 for each cycle, compared to $5,000 in the US. The ART industry also offers a regular supply of spare ova to another industry, the stem cell therapy industry — also unregulated in the country. India has announced a public-private partnership with three European pharmaceutical companies and the British government for stem cell research.
The growth of reproductive tourism is justified as a win-win situation: Women from abroad, desperate to bear biological babies, can now do so while Indian women surrogates earn money. Studies indicate that women hiring themselves out as surrogates almost invariably do so out of economic necessity; and are exploited by a range of middlemen and women. Many NGOs were set up by third party administrators (TPAs) to recruit women for commercial surrogacy. By and large, the surrogates get a fraction of the fees that the doctors and TPAs do. Research reveals the commercial surrogate receives a quarter or less of the fees paid by a commissioning couple.
Kumkum Sangari’s recent work is important in this context. Activists who work on gender issues, very often, rely on the concept of “choice”. Sangari shows that the concept disempowers women who have very little resources or assets. It is also important to bring in insights from the reproductive justice movement, including that of women of colour in the US, who rejected the concept of reproductive rights as representing the rights of white women. Sangari’s work is also important because she knits the “rights” of couples in the West to have a child with the unfreedoms of women in countries like India. Both are locked in by imperialism and patriarchy.
This could also problematise certain rights claimed by sections of the LGBT movement: The right to reproduction, and thus, to hire a commercial surrogate. Till very recently, India allowed commercial surrogacy for foreign gay couples, although not for Indian gay couples. Thus an Israeli gay couple could buy an Ivy League egg (blue eyed, blond, high IQ-ed, Jewish eggs fetched the highest price) from the USA, bring it to New Delhi or Mumbai, and hire a commercial surrogate to bear the baby. The ban on commercial surrogacy for gays in India in 2009 made Nepal a destination for Israeli gays who wanted the services of surrogates. But Nepal bans commercial surrogacy for Nepali women. So Indian and Bangladeshi women were taken to Nepal to bear children for Israeli gay couples. After the earthquake in Nepal last year, the Israeli government arranged a special airlift of babies born through commercial surrogacy. Is this not trafficking?
Meanwhile, in Thailand, commercial surrogacy was banned following two major scandals. The first one involved an Australian couple who had hired a Thai surrogate. This case involved a twin pregnancy — this frequently happens with IVF. One baby, a female, was “ normal” and was accepted by the commissioning couple. The male baby, afflicted with trisomy 21 or Down’s syndrome, was abandoned by the commissioning couple. What is even more significant was that the commissioning father had undergone a jail sentence for sexual offences against minor girls. The second scandal involved a Japanese commissioning father, who, it was discovered, had hired and impregnated 18 commercial surrogates. The commissioning father claimed he had a vast business empire and only his biological children could inherit and run it.
All these factors meant that demand for commercial surrogates in India increased (it is equally significant that Ukraine and Russia are also sites for international reproductive tourism). The ban will be fiercely resisted by the medical industry, the CII and FICCI, and indeed a section of surrogates for whom this is a livelihood option.
The bill cleared by the cabinet bans all commercial surrogacy. Childless couples who have been married for more than five years may go in for altruistic surrogacy. The bill also bans the commercial sale of oocytes. While the bill did the right thing, it appears to have done so for the wrong reasons. Media reports suggest that the foreign minister Sushma Swaraj, announcing the bill, instead of the health minister, adduced Indian culture as the reason for the ban. But the issue is not about culture, it is about reproductive servitude and exploitation.
These are not central to the bill’s concerns; exclusion of single women, or indeed gays, from altruistic surrogacy is the bill’s central concern. That is discriminatory.
A recent essay in The New York Times gives voice, for the first time, to children born through commercial surrogacy. They said they felt soiled. All these testify to a failure of public health to prevent a problem. There must thus be efforts to reduce the prevalence of infertility, while also making adoption easier.
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