Is surrogacy law socially beneficial?

Despite a Supreme Court of India ruling in 2008 which allows commercial surrogacy, the Lok Sabha on August 5 has passed the Surrogacy (Regulation) Bill 2019 which is pending in the Rajya Sabha prior to Presidential assent before it becomes a law.

Today, women across the country rent their wombs for artificial insemination to earn money — around Rs 3 lakhs which changes their family fortunes.

In a country characterised by low income and inequity, how relevant is the introduction of surrogacy law? Does India’s decision to adopt western surrogacy laws make sense? In the UK, surrogacy is a punishable offence and banned in Germany, legal only in some US states.

However, surrogacy law is necessary to ensure the rights of the surrogate mother and the child through a contract which safeguards both parties involved in the technology-induced biological process. The contract would include details of payments, insurance coverage and post-birth medical cover to ensure the surrogate mother’s welfare.

The absence of appropriate law to regulate surrogacy has left the field wide open for unscrupulous elements to exploit poor women of reproductive age. Surrogacy has spawned a black market which constitutes hospitals and agents who develop linkages with poor women of reproductive age to act as surrogate mothers for a fee.

In 2002, the Indian Council of Medical Research specified guidelines for surrogacy or assisted reproductive technology which formalised the practice in the country. However, there was no legislative backing to these guidelines which led to a booming surrogacy industry worth over $2 billion.

The lack of legislation also led to other problems as evident from the Baby Manji case in 2008 when a Japanese couple commissioned a surrogate mother at Anand district, Gujarat to bear their child. When the Japanese couple got divorced and the mother refused to accept the newborn, the Government of India was left with the baby.

The paternal grandparents sought permission from their government to take the baby. In 2008 the Supreme Court of India permitted the Japanese grandparents to take their grandchild to Japan. To that extent, the SCI’s decision opened the floodgates for commercial surrogacy which spawned a multi-billion-dollar surrogacy industry.

Today commercial surrogacy is estimated at over Rs 3,000 crore per annum as the country is an international hub for the trade. Gujarat has earned the epithet “Baby Factory of India”, because its Anand district has emerged as the surrogacy capital of India. The surrogacy industry involves over 3000 clinics, hundreds of doctors, nurses, travel agents, hotels, restaurants and supermarkets.

The Bill makes a clear distinction between commercial and altruistic surrogacy. While the laws will allow the practice of altruistic surrogacy solely for family members, it will ban commercial surrogacy.

Another fallout of the surrogacy legislation is that it would spawn a black market in the country with external dimensions which would involve foreigners. However, the Bill is flawed with several loopholes that policymakers have failed to take into account.

The Bill lacks reference to non-resident Indians (NRI) who may choose to have a baby in India. Also, there is no scope for single mothers, single fathers, unmarried couples and LGBTQI community to become parents. Parenthood is a fundamental right that cannot be denied to anyone and therefore surrogacy remains a grey area. For instance, Bollywood celebrity Karan Johar is a single father thanks to surrogacy.

While the legislation would ban commercial surrogacy, the practice of altruistic surrogacy would be allowed to continue. Altruistic surrogacy is when a woman volunteers to bear a child for no financial gain. The proposed legislation specifies that altruistic surrogacy could involve only family members. However, in the event that family members may not volunteer then it precludes the possibility of parenthood.

Another problem with the Bill is that couples could opt for surrogacy only if they are infertile for five years which is inconsistent with the WHO definition, which says infertile couple are the ones unable to conceive after a year. Also, the Assisted Reproductive Technology (Regulation) Bill 2014 describes infertility as the inability to conceive after at least one year of unprotected sex.

Surrogacy is a function of supply and demand where both parties are happy with the outcome that involves the distribution of wealth in society and thereby helps uplift economically weaker sections. In this context commercial surrogacy could be re-designated “compensatory” surrogacy and viewed from a wider perspective of social happiness. Restriction of surrogacy to being altruistic could disturb marital harmony and distort the social fabric. Whether the proposed surrogacy laws would prove beneficial or regressive remains to the seen.

(The writer is an assistant professor at School of Law, Christ Deemed to be University, Bengaluru)