India Throws Out the Baby with the Bathwater

India’s thriving US$2.3 billion rent-a-womb industry, the go-to destination for thousands of foreign couples seeking surrogacy at relatively cheap rates, is in danger after the government said it would seek to outlaw the procedure.

In an affidavit to the Supreme Court last week, the government stated it would henceforth “prohibit and penalize commercial surrogacy services” to protect the “dignity of Indian womanhood” and to prevent “trafficking in human beings” and the sale of surrogate children.

The proposed ban has outraged feminists who say the ban would disempower many Indian women who are happy renting their wombs. Many of them see this as a legitimate way to earn some extra money (US$10,000 to 20,000 per transaction) to meet financial goals such as children’s education or buying a house. So, they argue, what right does the state, which has not been able to present them with alternate opportunities for a better life, have to snatch away this choice?

If the decision is upheld, international clients who form the bulk of customers at hundreds of registered IVF clinics across the country will be barred from renting wombs from surrogate mothers. Only needy infertile Indian couples, non-resident Indians and PIOs (Persons of Indian Origin) would be able to opt for altruistic or non-commercial surrogacy.

Officials argue that India remains one of the few countries that still allow the practice. It is banned completely in Germany, Norway, Italy, Sweden and Singapore. Only the altruistic kind is allowed in Canada, in certain Australian states, New Zealand, the UK, Greece, Denmark and the Netherlands. In the US, some states allow commercial surrogacy, but in a highly regulated environment.

The current controversy around surrogacy – wherein the embryo created from the egg and sperm of the genetic parents is placed in the uterus of another woman — started brewing soon after the government put out a new draft Assisted Reproductive Technologies bill barring foreigners from coming to India for surrogacy services. It also specifies that only heterosexual married couples can opt for surrogacy – a discriminatory provision that denies gays and singles from the option.

Experts say the government could well be ringing the death knell of the flourishing reproductive tourism industry, which offers spinoffs for the entire medical sector. A recent statement by the Supreme Court that commercial surrogacy ought to be outlawed has only added fuel to the fire. Experts say that while fertility clinics will be directly impacted by such a move, collateral damage to agents, middlemen, hoteliers and stakeholders involved in India’s lucrative medical tourism sector, will also be significant.

"If the government imposes such a ban, it will not stop such arrangements in India as the system is too entrenched,” said Akriti Panchal, an obstetrician at Max Hospital, Saket in New Delhi. “But it will surely drive the surrogacy business underground. This will be detrimental for the poor Indian surrogate women who are already exploited with abysmal rates for their services rendered. They will become even more vulnerable with absolutely no formal charter governing their transactions."

More than 350 fertility clinics offer surrogacy services across both cities and small towns. A large percentage has been buoyed by foreigners. But domestic demand has burgeoned too, matched by an ever-growing supply side of impoverished women who rent out their wombs in return for a lump sum.

However, the business has repeatedly come under fire for routine exploitation of surrogates who rent their wombs to strangers. A 2013 survey by the Centre for Social Research along with the WCD Ministry showed 68 percent of surrogate mothers in Delhi and 78 percent in Mumbai were housemaids by profession.

The survey stated India had become a rent-a-womb destination and that it required a rights-based framework where surrogacy would involve no monetary transactions except for medical costs. However, it also explicitly said the law should allow LGBT, single parents and unmarried couples to opt for surrogate children. The bill, which is expected to be tabled in Parliament soon, has chosen to ignore this recommendation.

Undeniably, law is flouted blatantly in commercial surrogacy transactions, a prime reason why the government is choosing to ban it. Even though the guidelines of the Indian Council of Medical Research require that negotiations between surrogates and commissioning parents be conducted independently between them, studies have found that for infertility clinics, the surrogates always come last with parental rights of commissioning parents and the clinics' interests taking precedence.

There have also been horrendous stories of multiple embryos being implanted in the surrogate’s womb to ensure a higher chance of success. There are cases of babies born with disabilities or an unplanned twin being abandoned by the intended parents.

Despite such rampant malpractice, however, experts assert that the problems lies not in banning foreigners from surrogacy but in improving regulations.

"Banning the business is like throwing out the baby with the bath water,” said fertility expert Anand Patwardhan. “We need a more nuanced approach. A strong law on Assisted Reproductive Technologies that could help monitor the industry more effectively is more the need of the hour."

Clearly, India needs a law to regulate the industry. The government’s latest draft of the bill seeks to impose heavy penalties on couples who refuse to take custody of a surrogate child born with disabilities, and prioritizes the rights of surrogate mothers.

The bill also paves the way for the establishment of national and state boards and makes registration of clinics mandatory. Only a healthy married woman between the ages of 23 and 35, who has a child of her own above the age of three years, is allowed to become a surrogate mother, with the consent of her spouse.

The commissioning parents must bear all medical expenses, insurance, etc., and are legally bound to accept the custody of the child/children irrespective of any abnormality that the child/children may have, and whether the parents separate before the child/children are born. Violators face imprisonment of up to five years or a fine of US$15,000, or both for the first offence. The bill also prescribes a minimum compensation for the surrogate mother.

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