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In this article, the commercialization of surrogacy, the exploitation of women who consent for surrogacy, and Indian regulations on surrogacy to safeguard surrogates are discussed. An overview is provided to pave a roadmap for future policy changes and legal amendments.
‘Surrogatus’ is the Latin term for Surrogacy, meaning ‘replacement’. But surrogacy in the modern world implies “the carrying and delivering of a child for other people.” Surrogacy is a procedure wherein a woman agrees to conceive for another person or couple and later hands over custody of the newborn. Commercial surrogacy involves a pregnant woman receiving remuneration (in addition to medical and other reasonable expenditures) for carrying and giving birth to a child. Although the idea of surrogacy is as old as time, it has recently become a common way to start a family. Surrogacy is advised for those who are ‘at risk’ if they become pregnant and those who cannot conceive. The surrogacy market is growingly centered in developing countries like India, “which have a reach to present-day technology and skilled individuals, and can provide surrogacy programs at a low price in comparison to countries such as the United States of America”.
Commercial Surrogacy: Status Quo in India
India legalized commercial surrogacy in 2002. The surrogate is compensated for all the expenses related to pregnancy under the current law. Commercial surrogacy or “womb for rent” is a booming business in India. The surrogacy market is large and growing, and thousands of probable parents all over the country have both the want and the intent to hire willing women as surrogate birth givers of their children. This is the reason behind India currently being the biggest hub in the world for providing such services. In India, the total cost of this system in comparison to other countries is very low, thereby, increasing the demand for surrogates. The entire price of the process in India ranges from $ 20,000 to $ 45,000 in comparison to $ 60,000 to $ 100,000 in the US.
But this boom has its own ill-effects: commercialization of surrogacy leads to a black market, the possibility of child sales, breeding farms, forced conversion of poor women into infant producers, and selective breeding/illegal sex determination of the foetus. In India, commercial surrogacy is quickly becoming a system to exploit weak and underprivileged surrogate mothers.
Countering Violation of Rights
Many Indian women are opting for surrogacy as a way to earn and support their families. These are often poor women with limited understanding and awareness of commercial surrogacy. According to Dr. Ranjana Kumari, Director of the Centre for Social Research, New Delhi, “oftentimes, the woman also does not know what terms and conditions she is signing into, besides that her womb will be used to give birth to a child”. India does have rules and regulations related to commercial surrogacy, still families are frequently convinced by agents to forge documents and send girls below the age to 16 for commercial surrogacy.
A recent case study revealed that there are significant similarities among women wishing to be surrogates. It was found that the main commonality is a dire need for money or monetary support. The need for this money ranges from buying a house or agricultural land, to setting up small businesses and sending their kids to school. Another finding revealed that none of them were aware of the surrogacy procedures and regulations, and most of them were uneducated. In this study, a 28-year-old woman shared her experience and stated that,
“I feel a lot of pain and I can’t move. So many drugs and injections are weakening me. I had not been told all this before. I too had my own children but things were easy then. I do not understand why it is so complex and painful this time.” Lack of education and poverty repeatedly pushed them into the surrogacy process for financial gain. It appears that agencies consider them the “baby-making machines” forcing them into labour year after year.
Surrogacy for the members of LGBTQIA+ community and single parents was banned in 2013, by the Government of India, and restricted for foreign nationals in 2015 thereby allowing embryonic penetration for research purposes only. The government came up with a new Surrogacy Regulation Bill, 2016 under which it proposed to legalise domestic and altruistic surrogacy only. But the Bill was not passed due to the postponement of the Parliament Session. Further, in 2019, the Government came up with a new Bill that was a replication of the 2016 Bill. It was passed in Lok Sabha but not in Rajya Sabha. The Upper House sent it to the Select Committee for consultation and recommendation, and the Committee recorded concerns of all members. About 15 of these recommendations were included in the 2020 bill. The Surrogacy Regulation Bill, 2020, incorporates several changes in the 2019 Bill after the recommendation and consideration of the Committee.
In an effort to preserve the welfare of surrogate mothers, the Government of India introduced a law banning commercial surrogacy. The bill also increased the insurance cover for surrogate mothers to 36 months, as compared to the previous 16 months, to combat the high risks after the pregnancy because of medical complications. It imposes penalties of upto 10 lakh rupees as fine and 10 years of imprisonment for surrogacy importing and selling of human fetuses.
The Way Forward
Surrogacy revolves around ethical, moral, and legal issues, and the surrogate mother is the only one subject to physical, mental, and economic exploitation from the surrogacy. Therefore, it is important that policies and laws are drafted in their interests. The contract should be secured in such a way that it is possible to maintain a proper balance between both mothers (probable and surrogate). Proper counselling should be done before entering into an agreement between the parties that will facilitate the defence of various rights including the right of procreation of a surrogate mother. There is no denying the fact that rather than emotional reasons, it is the economic factor that is normally taken into account as it is considered the primary and most important case which is related to the right to livelihood. By banning surrogacy, the Government has taken a step forward to secure the surrogate mother’s rights and also protect them from exploitation. But there should also be proper safeguards of the reproductive rights of surrogate mothers and special attention should be paid to their health, mental as well as physical. Also, the privacy rights, individual autonomy rights, and right to dignity and liberty must be protected before, during, and after pregnancy.
By Mohd Rameez Raza and Gaurav Kr. Yadav
Mohd Rameez Raza is a student of BBA. LL.B. programme at Integral University, India, he is also a Research Analyst for Centre for New Economics Studies, O.P. Jindal Global University, India. He has a deeply vested interest in Human Rights Law, Constitutional Law, and Gender Studies. He can be reached at email@example.com.
Gaurav Kr. Yadav is a student of BA. LL.B. programme at Integral University, India. His interest areas are Criminal Laws and Constitutional Law. He can be reached at firstname.lastname@example.org.