Recently, I watched a film called“ Mimi”. In a Bollywood film, the storyline is on the surface pretty simple. An American couple is in Rajasthan combining tourism with the search for a surrogate mother who can bear their child. They have contacted a few brokers and been shown, several women. But they are all anaemic and malnourished and don’t suit. The taxi driver taking them around who understands some English thinks that the man is looking for a woman but after he eventually understands the concept of surrogacy, he introduces them to a girl he knows who fits the bill. After the money terms are agreed on and a tie-up is established with a medical facility in Jaipur, the procedure is carried out.
A few months into the pregnancy, the couple is told that the foetus has problems and when born, it will have Down’s syndrome. The couple panicked, and advise the surrogate mother to abort and return to the US. There are tensions in a rural setting about a single woman being pregnant as they don’t understand surrogacy and the technology that makes it possible. But once that is explained, family and friends come together to support that the surrogate has taken that she will not abort. She will give birth and bring the child up. The child is born normal exposing the limitations of laboratory tests and though there are a few titters about a village woman giving birth to a fair-skinned boy with blonde hair, the child comes to be loved and cared for by all. The turn in the story comes when the couple back in the US sees a Facebook of the child and realise that the boy is normal and returns back to claim custody. The story then takes an emotional turn but even then, the emotional churn is part of what surrogacy is all about.
India legalised surrogacy in 2002. Within a decade, the medical procedure became a multi-million-dollar industry – a mixed bag for childless couples amid allegations of exploitation of surrogates. By 2012, India had a thriving $2 billion surrogacy industry, figures compiled by the Confederation of Indian Industry show. At least 25,000 children were born through surrogacy in the same year. The cost of surrogacy ranged between $18,000 to $30,000, of which about $8,000 went to the surrogate mother. India had up to 3,000 unregulated clinics until 2019, government figures showed. But the booming industry was hit in 2015 when the government banned surrogacy for foreigners over several cases where couples abandoned the surrogate babies due to laws in their native countries.
Prime Minister Narendra Modi’s government passed a new law in 2021. Although transnational surrogacy was banned in India in 2015, to further regulate the process, the Assisted Reproductive Technology (Regulation) Bill and the Surrogacy (Regulation) Bill – both of which will have a strong impact on Indian women’s reproductive rights and health. were enacted They are meant to regulate and “supervise” assisted reproductive technology (ART) clinics and surrogacy and curb unethical practices related to issues like sex selection and exploitation of surrogate mothers by imposing both monetary penalty and jail terms for violations.
Like any laws which have ethical interfaces, these laws too have drawn their valid share of criticism. The law has now banned commercial surrogacy like the instance in the film where a poor girl earns an unheard-of sum of money to carry another couple’s baby to term. Was that bad? Needless to say, repeated pregnancies are bad and so if Mimi were to have chosen that to be her profession, it would have over time have been detrimental to her health.
The new legislation permits only “ethical” or altruistic surrogacy, which will be completely free of any monetary transaction or payment to surrogates. But is altruism something that can be measured and would regulation of commercial surrogacy have been a better option than banning it completely? it is difficult to find a woman who would willingly become a surrogate in India, where topics such as infertility and assisted reproductive technology are often not discussed. The major debate around surrogacy is the conflicting interests of its different stakeholders. On one hand, is the state’s duty to prevent the exploitation of the surrogate and to protect the interests of the to-be-born child. On the other hand, is the right of women to make their own reproductive choices and the right of persons to parenthood. Balancing the interests will never be easy.
A Major concern also is that the new laws will exclude millions of Indian citizens from accessing ART and surrogacy. To apply for surrogacy, the man has to be between the ages of 26 to 55 years and a woman of 25 to 50 years of age. Both have to be Indians and should have no biological, adopted, or surrogate children (unless the child is mentally or physically challenged or has a life-threatening disorder).
The criteria for anyone opting to be a surrogate mother state that the woman in question must be married (at least once in her life) and should have her own child. She should be between 25 to 35 years of age and a close relative of the couple opting for surrogacy. Any woman agreeing to be a surrogate cannot be a surrogate more than once in her life and at the time she should be certified for medical and psychological fitness. Meeting all these conditions and all at the same time, particularly for women seem nearly impossible.
Like the law regulating organ transplants, to correct one wrong we swing the pendulum to the other extent. At one time, India was so unregulated that nearly anyone and everyone could get surrogacy facilities. Today the situation is such that hardly anyone can get it. Surrogacy is clearly not just a matter of science. It is also tied to deeply held emotions, the right and desire to procreate, and even the matter of faith, belief, and ethics. Childlessness and infertility are not new. The phenomenon and the stigma around it, particularly for women goes back to antiquity. But now that techniques are available, is it not right that they are used to enable childless couples to lead fulfilling lives? Just how much control is actually necessary. Of course, commercialisation of surrogacy beyond a point will make it accessible only to the rich? But isn’t a big chunk of healthcare anyway in private hands? No law is perfect but there is a lot to ponder about here.
