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:
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.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.