Surrogacy Bill: Creating a black market for wombs

Published: September 16, 2016 - 17:47

The provisions of the Surrogacy Bill 2016 will only lead to pushing the commercial surrogacy underground with surrogates becoming vulnerable to exploitation

Nikhil Thiyyar Delhi

What is common between Shah Rukh Khan, Aamir Khan and Tusshar Kapoor? Surely not acting abilities as their respective acting prowess lies on disparate ends of the continuum. What unites them is that they have chosen to become parents by using the means of commercial surrogacy. This is an option which will now be denied to prospective parents who can’t conceive biologically and were considering going down the surrogacy route to experience the joy of parenthood. The new Surrogacy (Regulation) Bill 2016, passed by the Union Cabinet raises some important questions. In the absence of a statutory mechanism to control commissioning of surrogacy at present, there have been cases of pregnancies by way of surrogacy, including in rural and tribal areas, leading to possible exploitation of women by unscrupulous elements. Surrogacy or surrogate motherhood is a form of assisted reproductive technology that helps couples, who are unable to conceive, have a child. The process involves the services of a woman who agrees to carry a child and deliver the child for the couple. Commercial surrogacy in India has been around for a couple of decades now. The first surrogate baby in India was born in 1994. The industry has since evolved, and today India offers some of the best fertility packages in the world. Intending parents with a valid fertility visa can come to India and get their IVF procedures done, hire healthy surrogates, return home, and monitor the entire pregnancy from afar. They can also get proper exit visas to take the children back after they are born.

Earlier, the agreements between intending parents and surrogates were oral, and the latter were often underpaid and ill-treated. Today, there are proper contracts to ensure that neither party is cheated. In many of the bigger and better organised fertility clinics, the surrogates are housed in special homes, given proper diet, medical checkups and maintenance allowances. At present, the surrogacy business functions under the regulatory guidelines issued by the Indian Council of Medical Research. It is estimated that surrogacy industry in India has a turnover of more than $400 million a year.

Empirical evidence suggests that banning surrogacy in its entirety can push the entire industry underground and lead to the proliferation of a black market for surrogacy devoid of safeguards and prone to exploitation of the surrogates. Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed the dark side of this industry. However, the result was chaos. Some surrogates in various stages of pregnancy were left in limbo. Intending parents did not know how to collect their babies. Consequently, the surrogacy industry got pushed underground.

The new draft bill introduces an impediment by defining who has a right to become a parent. According to the Bill only heterosexual couples who have been in a marriage for at least five years and have proven fertility problems can access fertility treatment and if a surrogate is required, then they have to identify a relative who would carry the baby out of altruism. But, in today’s world, there are many socially acceptable relationships which fall outside this rigid category – single people who chose not to get married, those in live-in relationships, gay couples, divorcees, and widowed persons. Under the draft bill, this demographic would not have a right to access fertility services. Foreign couples have already been banned by the Indian government refusing them entry visas for fertility tourism. Without this permission, a couple cannot take a child born to a surrogate in India out of the country. This bill will effectively kill fertility tourism which also means it will take a significant chunk out of the $1 billion a year and growing Indian fertility industry. A fillip has been given to this by the new draft bill.

Many countries including the UK that have experimented with altruistic surrogacy have realised that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies. A woman must have rights over her own womb and can use it to make babies for others if she so wishes. It becomes exploitation only when she is either forced to do so by physical or emotional pressure. This can happen even in altruistic surrogacy. A poor relative, a dependent or a woman from the family in any sort of vulnerable position can also be pressurised into bearing a child for a richer, more powerful infertile couple. 

The surrogacy debate has completely overshadowed another very relevant and potentially dangerous component of third party reproduction, i.e., oocyte 'donation'. Unlike surrogacy, oocyte harvesting from donors is an invasive surgical procedure. Who is this donor? Donors are women of reproductive age who "volunteer" to have their eggs harvested. In the process, they have to take potentially harmful ovulation inducing medications followed by surgery for extraction of eggs (popularly referred to as 'treatment' by the doctors in the infertility business). Oocyte harvesting has completely been overlooked in the current surrogacy bill. Our legislators must try and bring this under the ambit of the law, rather than chasing red herrings and trying to prevent homosexual couples from having children. 

The provisions of the Surrogacy Bill 2016 will only lead to pushing the commercial surrogacy underground with surrogates becoming vulnerable to exploitation
Nikhil Thiyyar Delhi

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