Commercial surrogacy risks exploitation of women

The Ministry of Health and Family Welfare has called for comments on the proposed Assisted Reproductive Technology (ART) Bill 2015 soon to be tabled in Parliament. This Bill attempts to institute governing structures for and supervision of infertility clinics. By far, the most controversial issue is this area is commercial surrogacy arrangement. In 2005, the ICMR National Guidelines for Accreditation, Supervision and Regulations of ART Clinics allowed commercial surrogacy in India. 

This inexplicable and unjustifiable decision shocked civil society and the medical fraternity, as commercial surrogacy is strictly banned in almost all countries of the world. Since then, with every scandal or tragedy involving exploitation of surrogates or abandonment of children, the image of India has been tarnished and tagged with derogatory terms like ‘rent-a-womb’ and ‘outsourcing babies’.

The main beneficiaries of these arrangements would be the clinics offering these services to well-heeled affluent clients from abroad, who are delighted with this form of medical tourism that allows surrogacy arrangements for a fraction of the cost abroad. Vocal protests by women’s groups, human rights groups and other professionals against this blatant exploitation of poor and vulnerable Indian women have been ineffective. The government has remained silent and continued to allow vested interests to dictate policy in this area.

The experience of Indian surrogate mothers is heart rending. Procured mostly from slums through agents, these women are removed from their homes and incarcerated in hostels until the surrogate child is born. Unempowered and desperate, the women undertake the risk of the additional pregnancy, clinical procedures and delivery for the monetary benefit they will bring. 

To increase the chance of success, surrogates are implanted with multiple embryos and often have to carry twins, undergo foetal reduction procedures and agree to Caesarian section for the safety of the child. The HBO documentary ‘Outsourcing Embryos’ by journalist Gianna Toboni is just one of many painful exposes on the darker side of surrogacy in India.

Children born through surrogacy are also vulnerable. If the commissioning parents change their mind and refuse the child, it is left for adoption at a state orphanage. When foreigners are involved, dissimilar country laws regarding adoption and citizenship create complications that can be unfair and detrimental to the child.

The tragic story of Baby Manji, a surrogate child born in India is still fresh in the collective mind. Abandoned in India by a Japanese couple who got divorced just before her birth, she was later claimed, with special permission, by her Japanese grandmother on the guarantee that the child would be assured Japanese citizenship.

In another shocking case in 2012, an Australian couple accepted only one of a pair of twins born through a surrogate arrangement in Delhi. They arranged to have the other child adopted by a couple in India. After this turned created international furore, Australian authorities agreed to confer citizenship on the abandoned twin if the adoption was illegal. This raises the spectre of child trafficking and commoditisation of children in the absence of adequate oversight.

In response, the ART Bill 2015 proposes that commercial surrogacy be allowed only for foreigners married to Indian citizens, overseas citizens of India (OCI), people of Indian origin (PIO) and non-resident Indians (NRI). This amendment does not fully address the issue of conflicting country laws relating to citizenship and adoption and exploitation of women.

This very year, two other Asian countries have toughened legislation in this area. Thailand has banned commercial surrogacy for foreigners and same-sex couples following a scandal involving ‘Baby Gammy’, a surrogate twin abandoned in Thailand as he had Downs syndrome, while his healthy twin sister was taken abroad.

Nepal, too, has banned all surrogacy arrangements in response to the public outcry over selective airlifting of surrogate babies in the wake of recent earthquake. The rescue was privately organised by affluent commissioning couples, unmindful of the surrogate mothers left behind. The irony of this story is that the surrogate mothers were mostly of Indian nationality, as Nepal does not allow its own citizens to enter into commercial surrogacy arrangements.

Multi-million dollar business
Surrogacy in India is now a multi-million dollar business offering the attraction of lower costs, permissive laws and availability of surrogate women. There are many who are profiteering from promoting surrogacy, for medical indications that warrant surrogacy are extremely limited. This blatant exploitation of vulnerable women in the name of medical treatment is unacceptable.

When poverty drives women to risk their mental and physical health, even using their bodies for financial return in this manner, dignity of the human being and respect for motherhood is undermined. Just as commercial organ donation was prohibited in India by the Transplantation of Human Organs Act 1994, commercial surrogacy must not be allowed, as these contracts are unconscionable, unenforceable and unethical.

Is it possible to put a price on the human body or an organ? For this reason, organ donation, blood donation and even human cadaver donation are altruistic. As in the case of organ donation, altruistic surrogacy arrangements could be allowed, with adequate regulation and oversight.

There is still a long way to go in providing protection, safety and well-being to every woman and girl child in India. Let this not be one more avenue of possible exploitation, whether by foreigners or Indians. We have the responsibility to ensure that the proposed Assisted Reproductive Technology Bill 2015 is reviewed.

The legislation must reflect this country’s commitment to human rights and children’s rights as signatories to the international charter of rights. In a country that is striving to ensure that women are included, educated, empowered and have a voice in the democratic and social arena, commercial surrogacy has no place at all.

(The writer is Research Associate, Department of Humanities and Health, St Johns Research Institute, Bengaluru)