On August 5, 2019, as national attention was focussed on the revocation of special status for Jammu and Kashmir, parliament’s lower house, the Lok Sabha also passed, with almost no debate, The Surrogacy (Regulation) Bill, 2019.

The surrogacy bill prevents single parents, same-sex couples, divorced or widowed persons, transgender persons, live-in partners and foreign nationals from using a surrogate mother. While single parents and foreign nationals can adopt a child, this option for the others is ambiguous, as we discuss later.

One of 35 new bills passed in 37 days over June and August by the Lok Sabha, the bill prohibits commercial surrogacy and allows “altruistic surrogacy”, the process of getting another woman to bear your child if no charges or monetary incentives are involved, except for medical expenses and insurance coverage. The bill now awaits assent by the Rajya Sabha, the upper house.

Experts and activists said banning commercial surrogacy will also take away the livelihoods of women who rented out their wombs and would deny women rights over their own bodies. The new bill also provides for a new layer of government certification and regulation. Some said they intended to suggest modifications and called for further public debate.

While there are no precise data, India has now emerged as a global hub for commercial surrogacy 17 years after the start of what is now an unregulated industry estimated to be worth about $2.3 billion (Rs 16,465 crore) per year, employing thousands in more than 3,000 clinics nationwide.

When there was no regulation, single people, those in live-in relationships, same-sex couples–from India and abroad–could rent a womb to conceive a child in India. This is now restricted to married, Indian hetrosexual couples.

Experts said they had indeed suggested reforms but not “a complete umbrella ban”, as Manasi Mishra, head, research and knowledge management, Centre for Social Research (CSR), a women and girls rights advocacy, put it. She said a regulatory framework with “civil society involvement in monitoring could have been a better alternative”.

“By banning it, (the) industry will go underground,” said Manasi Mishra.

“Considering the Supreme Court jurisprudence [here and here] on live-in relationships, children of live-in couples are considered legitimate,” said Gargi Mishra, a gender rights lawyer at Sama, a Delhi-based resource group working on issues related to women and health. “Now, by denying surrogacy to these groups–single parents, homosexuals, transgenders–you are denying them their rights, making it a regressive or limited view of what a family is.”

Surrogacy had “great emancipatory potential”, said Gargi Mishra, for people who could not otherwise have children.

New definition for surrogate mothers
Surrogacy is defined in the new bill as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth”.

Surrogacy is permitted for “intending couples” with proven infertility; they should be Indian citizens, married for at least five years and without a child, whether biological, adopted or surrogate. The woman should be 23 to 50 years old and the man 26 to 55 years.

Proven infertility through diagnosed medical conditions should indeed be the only criteria to permit surrogacy, said Manasi Mishra from CSR. “We cannot permit the rich, famous and celebrities to have surrogate children because of cosmetic reasons and just because they can afford it,” she said.

The bill says central and state governments will appoint an “appropriate authority” to issue “certificate of essentiality” and “eligibility certificate” to the intending couple. It provides for a National Surrogacy Board and State Surrogacy Boards, which will advise government on policy issues, supervise and lay down codes of conduct for surrogacy clinics.

The bill defines a surrogate mother as “a close relative”, genetically related to the “intending couple”, a married woman with a child of her own, aged between 25 and 35 years and can be a surrogate only once in her lifetime.

Focus on a genetic child, traditional family
If the bill becomes law, same-sex couples, single-parents and live-in couples will not be allowed to opt for surrogacy, as they currently can.

Criticism of the bill has been evident on social media:

“These restrictions are written into the Bill, so yes, they will indeed take effect,” Madhavi Menon, director, centre for studies in gender and sexuality at Ashoka University, told IndiaSpend.

Manasi Mishra from CSR said commercial surrogacy in India had made surrogate children vulnerable to paedophiles, organ-transplant rackets and trafficking.

“On the other hand, we may raise the question: Why there is so much obsession about having (one’s) own genetic child through surrogacy?” asked Manasi Mishra. “Why would these couples, who are so desperate, not prefer adoption over surrogacy? Isn’t this a double-standard?”

‘An exercise in moral policing’
The surrogacy industry was not illegal but un-regulated. But it will, in effect, be illegal if the new bill becomes law because only altruistic surrogacy will be allowed, said Ashoka University’s Menon.

“Like all professions, surrogacy too needs to be regulated,” said Menon. “But the two questions we need to ask are: why ban surrogacy rather than regulating it? Secondly, why regulate only surrogacy when every single profession in India is steeped in exploitation and in need of regulation?”

“The response to both these questions, I think, is the nature of the demographic(s) involved.” said Menon. “Governments in power always like controlling women and their bodies.

“The Bill is largely an exercise in moral policing and social engineering. Banning surrogacy will only take away from women yet another means of their livelihood.”

“Women are once again being asked to use their bodies for the greater good without getting paid for it,” Menon wrote in Scroll.in on August 6, 2019. “Motherhood will be mystified as sacred, and women will be punished for being independent.”

Some said the ban should be followed by modification of adoption processes, so single people and homosexual couples can have children.
“But that is not followed,” said Harish Iyer, a gender and LGBTQ rights. “By banning commercial surrogacy they have made comments on homosexuals saying this is against Indian ethos… it is outright discriminatory to gay people.”

Can same-sex couples, live-in partners, single parents adopt?
A single parent can adopt a child, according to the ministry of women and child development’s Central Adoption Resource Authority (CARA), the nodal agency for child adoption in India. However, a single male cannot adopt a girl child, while a single female can adopt a child of any gender, according to the eligibility criteria, which read: “Any prospective adoptive parents, irrespective of his (sic) marital status and whether or not he has biological son or daughter, can adopt a child subject to” these criteria.

Through a circular on October 11, 2018, addressed to ‘Authorised Foreign Adoption Agencies’, the CARA withdrew a decision made four months earlier disallowing adoption by a single parent with a live-in partner in a long-term relationship.

“The policy on child adoption doesn’t say that a same-sex couple cannot adopt, nor does it say they can,” said Sunil Arora, governing council member, Maharashtra State Adoption Resource Agency and executive director Bal Asha Trust, a child-care and adoption agency.

Arora reasoned that since adoption through CARA is an online process and single women can adopt, their sexual orientation is not known. The system automatically allots a child, irrespective of a couple or a single parent based on their waiting list number, he said.

On August 8, 2019, IndiaSpend sent an email to CARA asking if it allowed adoption by live-in and same-sex couples. We will update this story if and when we receive their response.

“Though it is not mentioned, the unsaid thing is if you are a gay parent you cannot adopt, it is difficult,” said Iyer. “If you are a gay father they assume that you will abuse the child, thus aligning to the common myth that gay persons are child sex offenders. So when they do family screening (which comes after a child is allotted by CARA’s system), it gets stuck there.”

(Mallapur is a senior analyst with IndiaSpend.)

Courtesy: India Spend

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A first-time surrogate mother in Anand, India, 2013. REUTERS/Mansi Thapliyal

The high cost of surrogacy in the U.S. has pushed many potential parents to seek cheaper options elsewhere. Countries like India and Thailand have attracted surrogacy clients from countries like the U.S., Britain, Australia and Israel. The global surrogacy trade, however, has been fraught with scandals.

In India, where I’ve studied surrogacy since 2008, the government is rethinking regulations. Gay couples were banned from using commercial surrogacy in 2012. In March 2017, the Indian government extended the commercial ban to everyone. Now, only so-called “altruistic surrogacy” is allowed – when a consenting female family member bears a child for a childless heterosexual Indian couple without pay.

But what impact are bans on commercial surrogacy having for women who work in the reproductive industry?
 

Downsides of commercial surrogacy

Some bioethicists and feminists have welcomed bans on commercial surrogacy. They argue that it’s unethical to build businesses on women’s reproductive capacities.

Surrogacy businesses in India almost exclusively focused on the needs of the client.

Destinations such as India became popular precisely because they offered surrogacy at bargain basement prices by paying surrogate mothers less. They offered preterm childbirth through cesarean surgeries in order to accommodate clients’ availability to take time off from work. They created barriers between surrogate mothers and clients to minimize the emotional costs for clients. This allowed clients to leave India with their babies – no strings attached.

Many bioethicists believe that selling pregnancy as a service is untenable because it puts a price on human body parts and life. Commercial surrogacy, they note, results in the devaluation of women and children and the eventual degradation of society. Thus, removing cash payment for surrogacy and instead endorsing it as an altruistic, gift-like exchange between transactors is seen as more ethical.

These arguments carry weight. Countries like Canada and Australia allow only altruistic surrogacy.
 

Downsides of bans

Like other countries that provide commercial surrogacy, there were no legal requirements in India to provide statistics on how many clinics provided surrogacy services, the number of clients or women employed. What we do know is that the ban has slowed a brisk global trade in Indian working-class women’s reproductive capacities that is estimated to have garnered anywhere from $400 million to $1 billion per year. The baby trade, however, does not stop with bans on commercial surrogacy. Instead, infertility clinics jump through legal loopholes by moving surrogate mothers across borders. These movements expose surrogate mothers to great risks.

For example, when India first banned surrogacy for gay couples in 2012, various infertility businesses in Delhi continued to sign on gay clients from all over the world. Clients shipped their frozen sperm to Delhi, which was used to fertilize eggs from Indian donors. The resulting embryos, legally belonging to the gay men, were implanted into Indian surrogate mothers. To avoid the ban, infertility clinics then moved surrogate mothers across international borders into Nepal. There, they gave birth and clients arrived to pick up their children.

This emerging trade route between Delhi and Kathmandu halted when an earthquake hit Nepal on April 25, 2015, killing 8,000 people and injuring more than 21,000. While various governments airlifted babies belonging to their citizens, the fate of the Indian mothers and how they got back home remains unclear.

I learned more about this type of workaround in conversations with a Mumbai-based infertility specialist in September 2015. The specialist, who will remain anonymous to protect confidentiality, revealed that he was recruiting surrogate mothers from Kenya to come to Mumbai. Through in vitro fertilization, he implanted the Kenyan women with embryos belonging to gay men. The women were then flown back to Nairobi after completing 24 weeks of pregnancy in India. They birthed babies in designated hospitals in Nairobi, from where gay father clients picked up the babies. The Mumbai doctor maintained that he had not broken the law, because technically, he had not interacted with gay clients within Indian territory, and all he had provided was in vitro fertilization for Kenyan “health-care” seekers.

News reports have documented a similar effect in Cambodia, where the government has begun to crack down on surrogacy earlier this year. Now, surrogate mothers from Phnom Penh are being sent to Bangkok, Thailand to deliver babies. Thai law bans commercial surrogacy transactions, but enforcement agencies are unable to distinguish surrogate mothers in hospitals from other pregnant women. Cambodian surrogate mothers are also being sent to Laos, where there are no laws, to deliver babies in clinics staffed by Thai doctors who once worked in Thailand when commercial surrogacy was still legal there.

Under these circumstances, women are far more vulnerable than before. They are wholly dependent on agencies that have brought them into countries where they are strangers and unfamiliar with the language, culture and social norms. Surrogacy agencies provide them with housing and food in these foreign countries. And they control the money. As a result, the women are powerless to terminate their contracts, or go back home if they choose to do so. They are isolated from friends and family and have no legal recourse to address financial abuses or medical malpractice.
 

Human rights of surrogate mothers

Country-specific bans do nothing to alleviate the vulnerability of working-class women across poor countries. Instead, these bans create situations where women may be exposed to far deeper mistreatment and exploitation. Governments might want to reconsider bans on commercial surrogacy.

One option is to negotiate multilateral agreements between countries to govern global surrogacy. Such international law would need to balance the rights of persons pursuing parenthood, children’s rights and surrogate mothers’ rights. But because of differences in countries’ norms on gay rights and surrogacy, international agreements are difficult to forge.

A more pragmatic solution for countries like India and Thailand would be to legalize commercial surrogacy but regulate it heavily. Rather than bans, governments should consider laws that uphold surrogate mothers’ sense of dignity and bodily integrity. Surrogate mothers should be treated as full human beings who have the right to choose how they get pregnant, the right to opt out of medical interventions, the right to refuse cesarean surgeries and the right to maintain contact with the babies they birthed. Commercial surrogacy is tenable only if surrogate mothers’ emotional, physical and intellectual well-being is respected.

Editor’s note: This article and video were produced in collaboration with News Deeply’s Women & Girls.
 

Sharmila Rudrappa, Professor of Sociology, University of Texas at Austin

This article was originally published on The Conversation. Read the original article.

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So once again the government is asking women to be unselfish and show selfless concern for the well being of others. The “others”, however, have been clearly marked. It has to be people within the close family. Women dare not feel selfless or altruistic concern for anyone other than those that are connected to them genetically or through marriage (since that is what defines a family by law and dominant customs). This concern should be so selfless that they should also not worry about their health after the pregnancy, they should not care for the loss of employment or any other changes that may happen in their lives as a result of this concern that they show for a family member. After all we are living in the “Indian ethos” where women are supposed to sacrifice for their “families,” and for none other. And in any case, till very lately, until all these new fangled ideas of women being natural guardians etc. came up, women were giving this altruistic services to their husbands. They are used to it and this is merely an extension of their familial labour. Simple!

It is such a waste of women’s reproductive potential that they bear children just for their husband. The family may as well benefit from the labour of the woman, and it be shared with other family members too. Especially for those who have married as per all the caste and community norms and have even stuck together for five years in spite of not having a child. Why should the hard earned money of “the family” be squandered on someone else? Is that not wasting the potential of women? After all why have we have saved the girl child? So that our boys can have the right girls to marry and also so that we can continue with our eugenic marriage and child bearing practices within the right caste and gotra unions.

This is what the government is saying. But there are others who are blaming the government for being conservative, people like the AIDWA and many others. Their unhappiness is with only this minimum application of the woman’s labour to married couples without a child. They are wanting this woman to extend her services for all those other poor sods within the family – the single people, those choosing to have “live in” relationships (with the knowledge and approval of the family), and the homosexuals (again loved and accepted and cared for by the ever loving Indian family). Trans persons exist only as far as the NALSA goes, they have no existence in real families, so of course their need for having children does not find a mention anywhere. Basically these liberal minded people are saying that families should get progressive enough to extend this familial privilege of reproductive labour by women within it, to all those who may or may not be able to carry forward the “lamp of the vansh”.
 
Commercial. Meaning: concerned or engaged with commerce; making or intended to make a profit.

I do not understand this liberal understanding which supports altruistic surrogacy for all but opposes commercial surrogacy. In whatever manner the anger against commercial surrogacy is articulated, somewhere it resonates with the emotion, “How dare women make a profit using that which they have been providing for free or in exchange for respect and aadar and izzat and samman and good family name and of course love!” This is couched under concerns of exploitation and violence, but strangely these arguments regularly crop up only when there is some commercial use of sexual or reproductive labour.

This is essentially the same logic that supported the ban on dance bars where women went to dance and use their sexual labour for the sake of making a living. They preferred to do that over the other options available to them. Then too questions of who it was doing these kinds of jobs was raised. We do not deny that these are probably choices that are made by those from the margins because they do not have other choices. We do want to make it possible for everyone to have a larger range of things to choose from. But we want to extend this choice to all women – including those that are choosing the option of getting married, or of doing domestic labour in their husband’s home or in someone else’s home, or of doing hard physical labour in agricultural lands and not being paid even minimum wages, or of being stuck with home based piece rate work that requires many hours of back breaking labour and pays pittance, or of many other jobs in small industrial units like in the garment industry where they have no time even to go and use the loo, the list is endless. Isn’t there exploitation everywhere, and should we not be raising these questions then in each of these situations?

When these questions are raised particularly in the context of sexual and reproductive labour, then they appear to be coloured with a moralistic understanding of how women should use their bodies and stay within the norms of society, and are definitely not informed by the choices that women themselves make in their circumstances. When profits and profit making systems are concerned, those who do not have enough power definitely get exploited and need protection. The usual way of a fair society should be to safeguard the interests of such people and to make their conditions for bargaining better. It cannot be about taking away the chance to make any money by banning the very activity.
 

Why is the Bill only about surrogacy?

This industry is not only about surrogacy. It is actually about assisting reproduction through use of technology. These technologies bring back the emphasis once again on the germ cell and gamete theory of children and every married couple is once again under a moral pressure to have “a child of their own”. So, in a sense, these technologies are actually the means of having children of one’s own genetic imprint. There were discussions over the last many years, almost for more than a decade, on procedures to regulate these new technologies. First, there were the ICMR guidelines, and then came the Assisted Reproductive Technology (Regulation) Bill. Doctors and IVF centres and clinics were the ones that were instrumental in pushing these,  possibly to make money from the domestic and international ART market, as also from  surrogacy, but definitely not only from that.

Surrogacy with a fertile woman does not really need high tech technology. Anyone can bear a child for anyone else, especially if the woman is fertile, and can have access to the sperm via a syringe, if not a penis. In fact, in the scheme of things, the surrogate, who asks for monetary compensation and voluntarily gives her child to someone else to nurture, is probably one of the subversive elements in the story of assisted reproduction. She, in her act of getting pregnant with the conscious decision of not nurturing the child beyond birth, redefines motherhood, lineage, and reproductive labour. If there were a scale for subversive potential in this context, the surrogate would mark higher than the same sex couple who desires to have a genetic child to make a family like everyone else. Yet she helps continue the story of genetic continuity for  those who cannot have their “own” child – the single man, the gay couple, the transwoman, etc.
Further, this technology is supposed to assist when two persons are not able to have a child because they are not able to produce the gametes or carry the pregnancy. Technology does not bother about why someone does not have the gametes. So it could be that the husband in the five year old marriage cannot produce fertile sperm, or it could be that the partner is not a sperm producing person (could be a woman or a transman or anyone who does not produce sperm). Technology could help all of these people. So even those unable to have children because of social norms and bodily limitations, all could use this technology to have their own biological child.

Sensing this subversive potential within the technology, the Bill somewhere tried to regulate who can have access to the technology; whereas actually it was for the regulation of the providers of the technology. So instead of concentrating on the doctors and the clinics, and the ways in which they used procedures and interventions in healthy functioning bodies, the Bill went on on to regulate who could access the technology. The Bill opined that the surrogate could not use her genetic material and thus brought her into the ambit of technology.

Many women’s groups tried to raise this issue from time to time in the last decade or so, and opposed the medical industry and its profit making intention in this whole process. There was also an opposition to the fact that gamete labs were seen as fit places from where to source eggs, sperms and surrogates. In this configuration of the labs themselves the surrogate was seen as just reduced to the womb and not seen as the person who actually laboured to carry the delivery. There were demands to look at surrogacy under laws related to unorganised sector workers and also to include them to talk of their concerns in the framing of the rules. Meanwhile there was more strident demand for regulation of the technology for all women, including the wives within marriages, the single women, the lesbian woman, the surrogates, and a demand that all be treated on par as far as technology goes.

And yet after years of discussions, a Bill for regulation of assisted reproductive technologies has become just merely a surrogacy bill. The government has not disclosed what happens to the rest of the Bill. The media reports the minister Sushma Swaraj saying, “There are enough regulations on IVF”. So this seems to be the trade off between the doctors, who are running the many ART centres across the country, and the government.

Yes, some of them will lose their business and their vision of making this country the hub for surrogacy. But they will get compensated by unregulated, or partially regulated, ART clinics because once the exploited women are out of the story, why do the doctors, who work so selflessly for profit, need any regulation for use of technologies? Who can question them on the amounts they charge, the medicines they give, the dream of having one’s “own child” that they nurture and build upon while underplaying adoption or child-free lives as options? There are already many who are pouring in their hard earned money to get this “own child” and am sure there is enough business. And finally of course, if not surrogacy, the doctors might get their chance to do many other things like clinical trials, embryo research of all kinds, cosmetic surgery, maybe even make good gender clinics…. The mind boggles at the possibilities (of what all can be made in india, keeping the families and ethos intact of course)!

Thus in one master stroke all the subversive potential of these technologies is finished. They could have been used by all those who are socially not allowed to have children of their own. They could have allowed for the possibility of multiple parents – the gamete donors, the pregnancy-nurturing mother, and the parents in whose guardianship the child grows up. They could have forced us to re-examine who can and cannot make a family and have children.

But by bringing in this Surrogacy Bill hasn’t this swayamsewak government done a great favour towards saving this country and its regressive ethos which only they know and understand?

Article was first published on Kafila.org
 

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