India has emerged as the world’s “surrogacy hub”. Infertile couples and, increasingly, gay couples and single women from different countries are paying Indian women to carry their embryos through to birth. While the surrogacy industry in India is extremely lucrative (worth more than $2.3 billion per year), the government has failed to regulate the practice since it became legal in 2002, leading to the adoption of unethical practices that put both surrogates and the babies they deliver at risk.
In an effort to protect Indian women from exploitation, the Indian government has introduced Surrogacy Bill 2016, which the Union Cabinet passed in late-August. If approved by Parliament, the law would completely ban commercial surrogacy, but would leave the door open for altruistic surrogacy – where no money is exchanged between the birthing mother and the commissioning parents. The bill has sparked a debate in India as to whether a complete ban on commercial surrogacy is the right way to protect women who act as surrogates from exploitation.
On the one hand, numerous troubling practices currently take place in the context of India’s surrogacy industry:
- Surrogates often are not paid what they are promised and, even if they are, it can be less than half of the total fee charged to the commissioning parents, since other actors involved (doctors, agents, lawyers, labs, technicians, etc.) all get a cut. Indian surrogates are rarely in a position to change the fundamental circumstance of their poverty because the payments are simply not enough, according to Manasi Mishra of the Centre for Social Research in New Delhi.
- Surrogates are not in position to provide their informed consent and are often deceived about the medical procedures they will undergo. Typically educated or illiterate, many cannot read contracts drafted in English and do have the confidence to question medical procedures. Women who are told they will deliver by natural childbirth, for example, may end up undergoing a Cesarean section.
- Clinics have a financial incentive to prioritize the health of the fetus over the health of the surrogate. There is nothing to prevent physicians from cutting costs by scrimping on surrogate follow-up care, or to ensure they behave responsibly when something goes wrong during the pregnancy.
On the other hand, critics have a number of concerns about the ban, including:
- Commercial surrogacy will continue to take place but under less safe conditions. Transnational surrogacy is notorious for its elaborate work-arounds so the ban will merely drive the practice underground. An illegal surrogacy market will likely increase surrogates’ vulnerability to exploitation and leave them without any avenues for legal recourse when contracts are broken.
- The ban will take away an earning opportunity for disadvantaged Indian women who have few other options. Where will they turn for income if commercial surrogacy is banned?
- Tighter regulation would be a preferable solution to the legitimate concerns of exploitation. Rather than banning the practice, the Indian government should instead consider regulating it, adopting measures that ensure that surrogates are properly compensated, receive proper follow-up care from physicians, etc.
Commercial surrogacy is a complex issue and the debate around the role of law and policy in this context, both in India and other parts of the world, is clearly far from over.