Is Banning Commercial Surrogacy A Step Back For India?

By Vasundhara Dudeja in Editor's Pick 23/12/2018

Lok Sabha passing a Bill on 19th December banning commercial surrogacy is like a fresh set of guidelines from the past telling women what to do with their own fertility.


Surrogacy has been legal in India since 2002. With advancing technology and blooming private healthcare, commercial surrogacy in India blossomed into a 1 billion dollar business. The most recent Bill passed in Lok Sabha bans the activity of commercial surrogacy. The only type of surrogacy that shall now be allowed will be altruistic surrogacy by a close relative of an infertile Indian couple, legally married for at least five years.


Putting it in plain terms, the surrogate can now only be a close relative of a married couple who would agree to become a surrogate out of selflessness for the welfare of others. They will not be allowed to accept money, other than payment of medical bills.


The established structure of surrogacy in India is such that it costs around 12-₹18 Lakhs from a reputed clinic where the surrogate mothers used to receive between  ₹2 lakh and ₹5 lakh.
This not only helped to give financial stability to surrogate mothers but also empowered them to cater well to their families; stabilise the future of their own children and invest in their families.


Banning this activity not only puts back women again in the last rows in terms of earning money but also promotes a culture where a women’s body shall now be used only for “selfless” reasons.


Duru Shah, a senior Mumbai-based gynaecologist said that banning commercial surrogacy and promoting altruistic surrogacy may create undue pressure on women who may not be in a position to negotiate becoming surrogates. “If a daughter-in-law is forced to become a surrogate for the daughter in the family, and she may not be able to say no, this leads to exploitation,” said Shah.


The new bill also bars foreigners, homosexual couples, unmarried couples and single people from taking the help of an altruistic surrogate. This further demeans the bill as unequal and discriminatory.


The shape of the bill started changing with noble intentions when child rights and identity came into question. The case that made the bill to change was Baby Manji Yamada case. The debate began when, in 2008, a Japanese doctor couple commissioned a baby in a small town in Gujarat. The surrogate mother gave birth to a healthy baby girl. By then the couple had separated and the baby was both parentless and stateless, caught between the legal systems of two countries. The child is now in her grandmother’s custody in Japan but has not obtained citizenship, as surrogacy is not legal in Japan.


But the solution to the problem of child rights and their identity is not depriving women of the rights to their own body. But rather putting proper provisions in place such that abandoning the process is punitive.


In a country which still fights with illegal sex determination, sex trafficking, child labour, and many such wars which are supposedly banned. To shut down business worth billion dollars by banning commercial surrogacy will force this business to inevitably go into the black market. The proper care, facilities and delivery process that the surrogate mothers have received up till now will be snatched away for low-grade facilities which might lead to more exploitation.


We live in a country where prostitution is legal, meaning that women, given they are willing, have the rights to earn through their bodies. Thus, banning surrogacy would not only be a hypocritical move but also bring women rights in India a level down.


Vasundhara is an in-house content creator. Other than past experiences of writing including writing as an Intern for The Hindu and various other platforms, she is also an engineer, a dancer, and a bibliophile.


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