Surrogacy Regulation Bill: Cause For Congratulation Or Concern?

An unnuanced ban on commercial surrogacy will drive the practice underground, and increase, rather than diminish, exploitation.

 A pregnant woman undergoes an ultrasound treatment at a maternity ward. (Photographer: Saul Martinez/Bloomberg)
A pregnant woman undergoes an ultrasound treatment at a maternity ward. (Photographer: Saul Martinez/Bloomberg)

The passing of the Surrogacy (Regulation) Bill, 2016 by the Lok Sabha on Dec. 19, 2018, has been heralded by the government as a success, and indeed why should the stamping out of this apparently pernicious and exploitative trade not be cause for celebration? The tabloid press in India, the United Kingdom, and the United States has, after all, long peddled sensationalist stories that invite us to believe that commercial surrogacy is always and necessarily exploitative; that altruistic surrogacy is not; and that those who commission surrogacy do so as they are either too wealthy, self-interested or body conscious to bother producing their own children. To see such broad and inaccurate assertions go unchallenged is certainly troubling but never more so than when they come to inform vital, much-needed legislation on assisted reproduction.

There is no doubt that the need for effective regulation of fertility services, including surrogacy, is serious and pressing. As previous reports have established, some surrogates have been subjected to disturbing levels of exploitation in their employment. This is, however, unsurprising, given that labour exploitation and repression are common features of all unregulated industries. Many of these women have experienced equally, if not more, oppressive conditions in their previous occupations as live-in servants, nannies, or workers in toxic industries – will these employments also now be banned as unacceptably exploitative?

A Patriarchal Presumption

Although it may seem counterintuitive, some women willingly choose to perform commercial surrogacies. The presumption contained in the bill, that any woman found undertaking a compensated surrogacy must have been “compelled to do so by her husband, the intending couple or any other relative” is deeply patriarchal as it completely fails to account for the woman’s own agency.

As one assisted reproductive technology clinician we interviewed explained: “Have you gone and checked what they [the women who volunteer as commercial surrogates] are actually doing? Working in a windowless room – go and see how many hours you will survive there where they are working daily! The factories are windowless, and they are making all kinds of stuff … their children are loitering around for 10, 12, 14 hours. You think she would not prefer surrogacy to that?”

We know from a series of global studies that some women enjoy surrogacy, that they find the act of gestating and gifting a child to another to be much more meaningful than other more inconsequential or abject forms of labour. Why then should these women be prevented from undertaking such work should they so wish?

The legislative responsibility here is not to ban their right to choose but rather to ensure that they are fully protected from exploitation while in that employment.

‘Close Relatives’ Can Be Coerced Too

A second presumption—that altruistic surrogacy via a ‘close relative’ does not carry the same exploitative potential as commercial arrangements—is highly problematic as well. The bill states that only an Indian woman aged from 25-35 years with at least one pre-existing child, who is a “close relative” of the intending couple can undertake an altruistic surrogacy on their behalf. Although “close relative” is not defined (another troubling deficiency) one assumes this implies a sister or sister-in-law. It is assumed here that altruistic intra-family arrangements that do not involve financial exchanges will be devoid of exploitation, but this cannot be blithely assumed.

Press reports on the passage of this bill point to the impact that shutting down commercial surrogacy could have on boosting adoption rates in India. While we fervently hope that this legislation would erode people’s preference for biologically related children, we also need to understand the deeper psychosocial and affective structures that drive people’s desires for children, especially in a context such as India. Despite the moral imperative to provide India’s millions of rescued children with a family, only 3,276 were adopted in India in 2017. This is clearly not a result of a lack of availability but reflects the desire for biologically related children. This preference has been present ever since the concept of private property emerged (as theorised by Engels), but the easy availability of, and access to, new reproductive technologies has really let the beast out of the bag. Banning commercial surrogacy is, in our view, unlikely to diminish these desires.

On the contrary, it is more probable that infertile couples might begin to pressure their ‘close relatives’ such as sisters or daughters in law to perform surrogacies that they may well be unwilling or psychologically unfit to undertake.

The risk here is that the bill simply displaces exploitation to a wholly unprotected invisible class of ‘close relatives’ who will be coerced into this labour, and moreover, expected to perform it for free.

The implications for the mental health and well-being of both the gestating mother and the child are likely to be profoundly adverse, even if they remain completely unacknowledged in this bill, as it currently stands. Put simply, it is a gross error of judgment to assume that exploitation is purely economic or that familial relations are devoid of exploitative or coercive potential.

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Discriminatory Premise

Finally, what of those individuals who are unable to access such a ‘close relative’? As a Delhi-based assisted reproductive technology specialist offering surrogacy services explained: “[The Bill] is saying you have to get a close relative; such as a sister. Now, say I do not have any sister. I have nobody [who fits the requirements]; then I can’t have a child?”

This brings us then to the third troubling presumption: that some people deserve to access surrogacy services, while others don’t. Contrary to public perception, the vast majority of those commissioning surrogacy do so, not because they are too lazy or vain to carry their own child, but because they are suffering from forms of structural infertility such as the absence of a womb or uterine abnormalities. Above all else, they long to carry their own children.

For them, a surrogate is a last resort, not the first.

Those with such reproductive disabilities come from all sectors of society and can include single and widowed women, and those in live-in and same-sex relationships. As Susan Golombok’s two-decade-long scientific studies have proven, surrogate children brought up by non-normative families are as well-adjusted as any other, and there can thus be no ethically sustainable grounds for discriminating against such individuals in the way this bill currently does. Given that such physiological abnormalities are easily diagnosed it is doubly discriminatory to make those so affected wait five years before allowing them to access surrogacy, and this should be reduced to one.

Some women are psychologically suited to undertake surrogacies and others are not. It is right and appropriate that such women should be allowed to undertake such work in the interests of family-building as long as their employment is suitably compensated, robustly regulated and performed within licensed clinics that are monitored by an independent regulatory body akin to the U.K.’s Human Fertilisation and Embryology Authority.

This work should not be thrust onto close relatives who may be subject to coercion or intimidation, but organised in a way that ensures that the reproductive workers and their families are justly recompensed and protected with meaningful and substantive medical and life insurance and entitled to make free and informed choices about the procedures they are asked to undergo.

Surrogacy arrangements should be subject to full legal documentation and compensation should be fixed by the state and not subject to negotiation.

For these amendments to be actioned, it will first be necessary to revise and ratify India’s wider Assisted Reproductive Technologies (Regulation) Bill, 2010. It will only be with its passage that a much-needed national framework for the regulation and monitoring of India’s burgeoning fertility industry (including conventions for the licensing and national registration of clinics, surrogates and gamete donors) can be effectively brought into play. In its absence, this unnuanced ban on commercial surrogacy will only drive the practice underground, unwittingly serving to increase, rather than diminish, the exploitation of the very women it hopes to protect.

Bronwyn Parry is Professor of Global Health and Social Medicine at King’s College London. Rakhi Ghoshal is her research associate.

The views expressed here are those of the authors and do not necessarily represent the views of BloombergQuint or its editorial team.