Opinion Regulate, don’t ban

The government’s latest draft of the Assisted Reproductive Techniques (Regulation) Bill seeks to impose heavy penalties on couples who refuse to take custody of a surrogate child born with disabilities.

Should the government distinguish between Indians and foreigners who want to have a child via surrogacy? On Wednesday, the Indian government iterated its lack of support for commercial surrogacy — where the surrogate mother is paid a fee, as opposed to being merely reimbursed for expenses, a practice referred to as altruistic surrogacy — to the Supreme Court, and indicated in an affidavit that only “needy infertile married Indian couples” would be allowed to use altruistic surrogacy. The affidavit was filed in response to specific issues raised by the court in a matter relating to commercial surrogacy, presently legal in India — one of the few countries where that is the case. Both contentions raise difficult questions about the proper legislative structure to regulate surrogacy.

Over the last decade or so, India has become a major destination for what has been referred to as “reproductive tourism” for foreign couples, owing to the relatively lower costs of in-vitro fertilisation and other treatments as well as the lax regulatory framework to protect the rights of surrogate mothers and the babies. In the absence of comprehensive laws to prevent exploitation, there have been instances where surrogates have died as a result of complications during pregnancy and the unavailability of good post-natal care. Contracts between surrogate mothers, who are often poor, and the intended parents are sometimes structured in a manner that the former assumes all medical, financial and psychological risks, absolving the latter of liability. There are horror stories of multiple embryos being implanted in the surrogate’s womb to ensure a higher chance of success. There are cases of babies born with disabilities or an unplanned twin being abandoned by the intended parents.

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Clearly, India needs a law to regulate what is estimated to be a $2.5 billion industry. The government’s latest draft of the Assisted Reproductive Techniques (Regulation) Bill seeks to impose heavy penalties on couples who refuse to take custody of a surrogate child born with disabilities, and prioritises the rights of the surrogate mother. But it also differentiates between Indian and foreign parents, which risks driving surrogacy clinics aimed at the more lucrative foreign market underground, further endangering both mother and baby. Instead, it should take the pragmatic approach and build in adequate safeguards to protect surrogates, with added checks and balances to prevent exploitation by foreign couples.