Regulate, don?t eliminate

A sudden and arbitrary ban on commercial surrogacy will hurt all the stakeholders in this multi-billion rupee industry, particularly children who are at the core of the issue

A sudden and arbitrary ban on commercial surrogacy will hurt all the stakeholders in this multi-billion rupee industry, particularly children who are at the core of the issue

The government of India?s proposed ban on commercial surrogacy is a rather ill-thought-out move that could have a disastrous effect on the flourishing surrogacy industry in India.

It is disastrous, not just because it will spell an end to the multi-crore industry, but because we are talking about the human lives which are at stake. Embryonic human lives, being gestated in the safe wombs of alternate mothers, could be in jeopardy if commercial surrogacy is suddenly and abruptly made illegal. What will then happen to the women who hired out their wombs? What if they are left holding babies they never wanted because the rules changed? What will happen to the hopes of the thousands of commissioning parents, who have paid lakhs of rupees or dollars on fertility packages? What if they cannot take their babies out of the country and India does not recognise the children?

Widespread impact

The consequences of such official action have been visible in other countries. Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed its dark underbelly. The result was chaos. A number of surrogates in various stages of pregnancy were left in limbo. Intending parents did not know how to collect their babies. Consequently, the surrogacy industry got pushed underground.

And then there was a flourishing cross- border surrogate smuggling nexus between India and Nepal, which was exposed in the aftermath of the earthquake when Indian women, who had crossed the border carrying babies for gay Israeli couples, got stuck in Nepal with their unborn babies. Nepal has subsequently banned all commercial surrogacy.

Given that an arbitrary ban on surrogacy can be disastrous, can phasing out help? And should commercial surrogacy be phased out?

India has had time to think about these issues, as commercial surrogacy has been around for a couple of decades now. The first surrogate baby in India was born in 1994. The industry has since evolved, and today India offers some of the best fertility ?packages? in the world. Intending parents with a valid fertility visa can come to India and get their IVF procedures done, hire healthy surrogates, return home, and monitor the entire pregnancy from afar. They can also get proper exit visas to take the children home after they are born. Earlier, the agreements between intending parents and surrogates were oral and the latter were often underpaid and ill-treated. Today, there are proper contracts to ensure that neither party is cheated. In many of the bigger and better organised fertility clinics, the surrogates are housed in special homes, given proper diet, medical checkups and maintenance allowances.

The baby, when it is born, has the intending parents? names on its birth certificate and the surrogate has no more claim or obligation to the child. The contract also ensures that the surrogate gets Rs. 4 to 8 lakh depending on the number of babies she is carrying. But of course, not everything is hunky dory. There are many cases of exploited or ill-used surrogates, cheated parents, unqualified doctors and unscrupulous agents, largely because India has been unable to pass a regulatory law. The Artificial Reproductive Technology (ART) Bill, first proposed in 2008, has gone through three avatars, but is yet to be tabled in Parliament. This proposed Bill covers several areas of concern, but needs updating and tweaking before it can be tabled. Even as the Bill is pending, it seems counterproductive to impose a ban on surrogacy without understanding the issues at stake.

Huge and unregulated

When I started writing my book Baby Makers: The Story of Indian Surrogacy in 2012, I had a very simple agenda. As a feminist and a writer, I wondered how a woman would feel if she had to rent another woman?s womb to carry her baby and how the woman who carried that baby would feel about it. Not an easy task, I found, as neither the surrogates nor the intending parents open up easily because they fear a social backlash. I also found that there were no proper statistics about the number of IVF clinics in India nor the number of surrogates. No one even knew what the actual turnover was. A United Nations-backed study said the industry had a turnover of $400 million, but many in the field said it was much higher. At present, the surrogacy business functions under the regulatory guidelines issued by the Indian Council of Medical Research. However, many of the fly-by-night clinics did not even bother about these guidelines.

People come to India for fertility tourism because it is cheaper or because it is unavailable in their own countries. Egg donation, which is legal in India, is banned in some countries. But in many East European countries it is big business. In India, an egg donor can get Rs. 25,000 every time she donates her eggs. This procedure too has to be carefully monitored and spaced. This is often not done because the more seedy clinics do not care about the health of the donor. Sometimes, the women themselves volunteer to donate more often because they are not aware of the dangers of ovarian hyperstimulation, and there are any number of unscrupulous ?fertility experts? who are willing to oblige both commissioning parents and needy donors.

Today the minimal regulation on the fertility industry in India is obviously woefully inadequate. But any law which is put in place has to take into consideration the needs and aspirations of the various people involved in this business. Primarily there are the babies born through surrogacy whose citizenship and right to be protected by their biological parents is of primary importance.

At the bottom of the pecking order are the surrogates, who are in it because it is a means of livelihood. From their perspective, there is nothing morally or ethically wrong because the babies are conceived through ?injection? (embryo implant) and not through sexual intercourse. They do sometimes get attached to the babies in their womb, but to them the money is more important and they are quick to move on after the birth of the child.

Some of the surrogates I spoke to proudly showed me their houses built from money they had earned through renting out their wombs. Many preferred foreign commissioning parents, as they paid better and gave better tips.

Some of the surrogates were poor, some middle class, some illiterate, some educated. They belonged to all communities? their need for money is what linked them. And as one woman pointed out, it was not wrong to want money for a better life and by renting out her womb, she was not hurting anyone as even her family supported her.

For the intending parents, surrogacy is a boon which gives them the child they never thought they could have. For this they are willing to pay any amount and go to any lengths to protect and nurture the surrogate carrying the baby for them. For the fertility specialists, this is the job they have been trained to do.

The problem lies with the bogus embryologists and doctors, the agents and touts who lure and cheat surrogates, as well as intending parents. They are the exploiters. Banning commercial surrogacy in India at this advanced stage will help no one. It will only create chaos and push the business underground. Banning is easy. Framing a proper law needs careful thought, good technical inputs and above all, political will.

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