Altruistic Surrogacy in India: A step in the right direction?

One lazy Sunday afternoon, when I was flipping channels on cable (yes, Amazon Prime and Netflix haven’t completely taken over my tele time), I chanced upon the trailer of an upcoming series on one of the popular channels, which shows that a mother-in-law, out of selfless love for her son and daughter-in-law, decides to carry their child since the daughter-in-law can’t conceive. Noble thought I must say, and this is what Altruistic Surrogacy is all about. Although, the producer didn’t do his homework — surrogacy across generations is not permitted today.

India is about to pass a law banning commercial surrogacy with the objective of stopping the exploitation of surrogate mothers, abandonment of children born out of surrogacy, and other unethical practices associated with it.

What started as a tool for medical tourism in India in 2002, mushroomed into a $2bn industry by 2012 (CII report) and as expected, raised concerns around unethical practices due to presence of middlemen who amassed wealth rather than it reaching the surrogate mother, embryo import, etc. Over a period of time, several notifications were released with respect to Surrogacy and Assisted Reproductive Technology (ART), excluding intended couples based on marital status, sexual orientation and citizenship.

Most recently, The Surrogacy (Regulation) Bill, 2019 was passed by the Lok Sabha on August 5, 2019. It was then referred to a Select Committee, which has held 10 meetings recommending clause by clause changes. It is yet to be passed by Rajya Sabha.

The Bill prohibits commercial surrogacy, but allows altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to the surrogate mother other than medical expenses and insurance coverage during pregnancy. It has also prescribed various conditions with respect to age of the intending couples as well as the surrogate, situations under which surrogacy can be allowed, the elaborate procedure around it and establishing National and State level boards to regulate and monitor the same. In addition to these, several other protections for the surrogate mother by way of increased insurance coverage, limiting it to one surrogate child in her lifetime, abortion only with her consent, etc are being proposed. The Bill also contains provisions to ensure that the intending couple do not abandon the child, by way of a court order of parentage and custody of the surrogate child. These are all ethically, morally and legally essential restrictions. However, there are certain conditions in the Bill that will practically make it impossible for genuine couples to fulfil their desire of becoming parents via surrogacy.

Firstly, the requirement of having your “close relative” being the surrogate mother. The reasoning being that motherhood is a noble cause and restricting it your well-meaning relatives to come forward will prevent renting a woman’s womb for commercial reasons. Now “close relative” is not yet defined in the Bill, but it intends to cover extended families and not necessarily blood relations. What are the odds of a couple having a “close relative” within 25–35 years of age, being a mother and wanting to be a surrogate? Also, reproductive and fertility issues are a matter of privacy and this, with due respect to Indian traditional values and family system, creates a whole new dimension of family politics and potential property feuds. On another extreme, some family setups may force a woman in a family to step in as a surrogate. Wouldn’t this lead to exploitation of women as well? The committee has recommended replacing the word “close relative” to “any willing woman”, but it is yet to be seen what gets finally passed.

Secondly, the Bill states “altruistic surrogacy means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative.” Is this giving headroom for “compensatory” surrogacy? And if the suggestion of replacing the surrogate to “any willing woman” and giving dispensation for “other prescribed expenses” are accepted, are we unknowingly creating an underground market that could lead to unethical practices once again?

Thirdly, it states that if a couple has a perfectly normal child, they cannot go in for surrogacy. Why would a State want to control something that is a constitutional right? In the case of B.K. Parthasarathi vs Government Of A.P. And Others on 14 September, 1999, the Honorable Bench opined, “The personal decisions of the individual about the birth and babies called ‘the right of reproductive autonomy’ is a facet of a ‘right of privacy.’” So why can’t the individual decide the when and how of parenthood?

The Bill proposes to allow infertile women, widows and divorced women to opt for surrogacy. What about widowers, divorced men or even same sex couples? How is this equitable?

When science and medicine has made significant progress in giving hope to many childless couples, are some of the above provisions regressive in nature? Are we taking away a source of livelihood from a woman when she needs it? Aren’t some women in India anyways “baby-making” machines for their husbands sometimes to give birth to a boy? Are we getting too caught up in moral and ethical issues on matters which should be scientifically and medically dealt with? Is therefore, “compensatory” surrogacy a better way forward?

Complete bans have rarely worked. It has most often led to unintended consequences which might well be the case here as well. Regulatory oversight and strict adherence to rules are better ways to tackle such issues. Surrogacy is no doubt a complicated issue with countries across the world having differing and extreme views. A relatively poor, conservative and complex society like us needs more awareness on this issue.

Coming back to the serial, I am glad that television has taken up this topic, but they have to take the moral responsibility of depicting facts since it reaches millions of households and influences some of them as well. For the sake of all the childless couples who would probably want to go down this route, I just hope that these entertainment platforms behave socially responsible and do not dramatize the issue to an extent that it makes their parenting desire via surrogacy a distant dream to be fulfilled.