Last week India’s lower house of Parliament passed a bill that would ban commercial surrogacy in the country. The passage of this bill has been celebrated by some, and criticized by others, as it brings India into step with a number of countries around the world that have banned commercial surrogacy.
The commercial surrogacy industry in India has been estimated to be worth upwards of 2 billion dollars, attracting Indian and foreign couples who are hoping to start or grow their families. For many years, the industry has been criticized as being exploitative, given the relative poverty of many of the women participating in the industry. While India’s surrogacy industry has long been considered an example of a dehumanizing industry for women with critics likening it to a “rent-a-womb” system, this new legal development designed to reduce these issues has been met with criticism from many.
The main criticisms of the bill are that it goes too far, effectively constitutes a ban on all kinds of surrogacy, and that it will have discriminatory impacts in practice. Many have been calling for regulation of the industry since the legalization of commercial surrogacy in 2002, however this law does not seem to be what they had in mind.
The ban is designed to target commercial surrogacy and does not specifically ban altruistic surrogacy, however the conditions under which altruistic surrogacy could actually be performed legally under this new law are almost impossible to meet. This law would limit altruistic surrogacy to heterosexual Indian couples who have been married for at least 5 years, and have been deemed unable to conceive naturally by a doctor. In addition to these criteria restricting the couples eligible to receive a child, there are strict conditions that must be met by the prospective surrogate mother as well. The surrogate must be an Indian woman that was married before or is still married, and must also be a close relative of the family looking to conceive.
These restrictions may help to protect economically disadvantaged women from being exploited, however this ban also threatens what some have considered an important possibility for women to earn desperately needed money, or to achieve some kind of financial independence or stability for themselves and their families. This new law could therefore be a paternalistic limitation on a legitimate and freely chosen option for Indian women.
In addition to the potential impact on surrogate mothers, this law could also leave many groups of people without access to surrogacy services in India, notably same-sex couples, unmarried couples, or infertile couples who do not have a family member willing to carry their child for them.
While fears about exploitation and the human rights of surrogate mothers in India are valid and need to be addressed, there are two sides to the coin of regulation. Both of these sides should be considered, and regulations should ensure that policies designed to protect certain groups do not discriminate against others.
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.