Commercial Surrogacy in India

In this paper, I will focus on the advantages and exploitation that result from commercial surrogacy, the Surrogacy (Regulation) Bill and the family dynamics of the intending couple and the surrogate through reflection and analysis.

Introduction: Childbearing is claimed to be one of the most important stages in the life of a married couple. The birth of a child is considered to be symbolic of a new beginning and allows the married couple to pro-actively work towards the creation of and adaption to the social institution of ‘family.’ In the Indian society, childbearing is closing linked to carrying forward the lineage of the family and child itself is attributed as a source of giving and reciprocating love, care and support. According to the Family Developmental perspective, the family is looked at as a unit of analysis that changes in predictable ways. The birth of a child is one such stage that brings about a predictable change. (class notes)

With the significant amount of emphasis and predictability attached to this stage of childbearing, issues of infertility often pose as major family stressors and obstacles. According to a report by the Centre for Social Research, infertility impacts the “fundamental feelings” of the individuals and what they consider their role to be in the family. It impacts the perception of their identity and sense of fulfilment. (Kumari, 2012) A report by Times of India in 2018 stated that 27.5 million couples in India face issues of infertility. The report further gave an account of a 36-year-old, Shruti Sinha who stated that “being childless is emotionally and physically distressing.” (Sharma, 2018)

This incapability of bearing children combined with the desire to produce and maintain your genes brings us to the phenomenon of surrogacy.

In this paper, I will focus on the advantages and exploitation that result from commercial surrogacy, the Surrogacy (Regulation) Bill and the family dynamics of the intending couple and the surrogate through reflection and analysis.

Concept of Surrogacy

Surrogacy is derived from the Latin word, ‘surrogatus’ which implies ‘appointed to act in place of.’ Surrogacy is often attached with words and phrases like ‘substitute’ and ‘rent-a-womb’ and is defined as a contractual agreement between a woman (surrogate) and an intending couple with infertility issues. The surrogate agrees to carry and deliver a baby for the couple who then become the legal custodians of the baby. After the delivery of the baby, the surrogate is remunerated. Therefore, surrogate motherhood comprises of a woman who acts as a surrogate or a “replacement mother” for another woman (or couple) who is facing issues with childbearing. (Surrogate Motherhood: History and Concept, n.d)

There are mainly two types of surrogacy- traditional and gestational surrogacy.

Traditional surrogacy occurs when the egg of the surrogate is fertilized with the sperm of the husband (intending couple) through a procedure termed as artificial insemination. In this case, the surrogate becomes the genetic and gestational mother of the child. This takes place in situations wherein the intended mother is incapable of producing fertile eggs and carrying a pregnancy. (Surrogate Motherhood: History and Concept, n.d)

Gestational surrogacy occurs when the intending mother’s eggs are removed and fused with the sperm of the husband in IVF (in-vitro fertilization) and then planted in the womb of the surrogate who carries the pregnancy. In this case, the surrogate becomes the gestational mother and the intending mother becomes the genetic mother of the child. This occurs in situations wherein the intending mother is unable to carry the pregnancy. (Surrogate Motherhood: History and Concept, n.d)

Surrogacy can be done primarily for two purposes, these are namely altruistic (done by a relative/friend of a couple for altruistic reasons such as friendship) and commercial (done for money and remuneration)

Commercialization of Surrogacy

Surrogacy in India is highly commercialized which has transformed it into a profitable business for many. This heavy commercialization of surrogacy has led to the creation of thousands of fertility clinics-legal and illegal, across the nation. Amongst these, Anand district in Gujarat has presented itself as the leading producer of babies and has created a reputation of being a “baby factory. Women of Gujarat take up surrogacy as a profession and wish to earn money for their livelihood through this. Apart from Gujarat, metropolitan cities like Delhi and Mumbai are also increasing their business of surrogacy. (Kumari, 2012)

This heavy commercialization had created a $2.3 billion industry according to the figures of CII. Additionally, the reporting of ICMR suggests that approximately 2000 babies are produced every year through commercial surrogacy. (Ghosh, 2020)

A phenomenon called “reproductive tourism” emerged in 2012, wherein couples from all across the globe who were facing issues of infertility, started coming to India in order avail the services of surrogacy. India became a hub of surrogacy for mainly 4 reasons- sufficient medical facilities, cheap rates, lack of stringent laws and regulation by ART clinics and lastly, a large number of women willing to become surrogates for money. (Surrogate Motherhood: History and Concept, n.d) Therefore, India started receiving world-wide acclaim for being the ‘surrogacy hub.’

In the present day, in order to understand surrogacy, it is essential to look at the laws that go around it. First released in 2016, the Surrogacy (Regulation) Bill of 2019, has come down on this surrogacy business and banned commercial surrogacy. The 2 main features of this bill are- first, it restricts and filters the couples who can seek out surrogacy, that is, it has banned all foreign couples, homosexual couples, and single people from seeking surrogacy. Second, it has banned commercial surrogacy and allowed the continuation of only altruistic surrogacy by a friend/relative of the intending couple. Thus, the business of women seeking money in return of their surrogacy will now be banned. Apart from this, the bill also places various conditions that must be fulfilled in order to legally qualify as a surrogate. (Sinha, 2019)

When we look at the practice, procedure and process of surrogacy in India, we are likely to encounter a multitude of contradictory opinions, some of which strongly oppose commercial surrogacy and others who believe that surrogacy is a miracle in the lives of many. The Surrogacy  Bill sparked a conversation between those who stand for and those who stand against commercial surrogacy.

Advantages of commercial surrogacy

“The barren gets a baby, the broke gets a bonus”- these phrases revolving around surrogacy claim that as a contract, surrogacy is beneficial for both parties involved. There are numerous accounts of women across the country who have stated that surrogacy has allowed them to support their family, pay off their debts and earn a livelihood. (Kumari, 2012)

A surrogate called Latha from Anand talks about how the money received from delivering the baby will allow her to buy her dream house. Another surrogate called Geeta shares her account of how receiving the money from the surrogacy will allow her to redeem her mortgaged family property from the bank. Both of these women work in Dr. Nayana Patel’s  Akanksha IVF clinic which is the country’s most reputed and famous fertility clinic. By 2015, this clinic had delivered around 1000 babies and accounted for a turnover of 24.5 crore. The report on this clinic records testaments of over 750 surrogate women who have benefitted from the money they received. (Kumar, 2015)

From the standpoint of liberal feminism, commercial surrogacy emphasizes women’s control and autonomy over their own bodies. It states that a woman should be allowed to do whatever she wishes to with her body. Prevention of women from engaging in commercial surrogacy would deny them reproductive and democratic freedom. Liberal feminists are also aware that due to lack of regulation, surrogacy can often turn exploitative, as a result they advocate surrogacy and its regulation. (Surrogate Motherhood: History and Concept, n.d) “It’s my body, I should be able to use it for income,” says 40 year old woman in her interview with India today, because the bill felt like an infringement on her body.

In order to understand the extent to which money matters for these surrogates, it is essential to look at their profile and background. The report by CSR suggests that most of these women come from lower income households and take up surrogacy in order to earn money that might take them years to earn. (Kumari, 2012) 64% of the women who become surrogates are uneducated and 88% of them come from the lower strata of the society. (Surrogate Motherhood: History and Concept, n.d)

This indicates that taking up surrogacy allows these women to earn between 5-7 lakh per delivery and gives them the opportunity to provide for their families. (Kumar, 2015) The structural-functional perspective gives us a lens to identify these women as fulfilling the basic function of providing economic support to their families. (class notes) Aasima, 26, who works at Nayana Patel’s clinic, talks about how she is taking up surrogacy in order to ensure that her daughter can go to an English medium school and can wear good clothes. (Doshi, 2016)

Apart from the money, these women also receive other gifts and services. Dr Nayana Patel’s clinic provides counselling to these women about the physical and emotional risks of becoming a surrogate, they are also provided with free accommodation, a diet monitored by dieticians, the opportunity to learn through courses of English and embroidery and beauty services as well. (Kumar, 2015) Many times these women also receive gifts from the intending couples. Naila, a surrogate, talks about her positive experience of becoming a surrogate for a Singaporean couple that gifted her clothes and food items on her birthday. (Doshi, 2016)

In addition this, the ICMR revealed in a 2016 article with Times of India, that there have been no cases reported of exploitation towards surrogates. This was further elaborated by a gynaecologist Dr. Rajni who stated that the government should have engaged in a dialogue with the surrogates before assuming that they are being exploited and implementing a blanket ban. (Sharma, 2016)

On the other side, various couples have been able to start a new family and are thankful for services like surrogacy which have allowed them to do so. A couple at Dr. Nayana Patel’s clinic had been childless for 23 years of their marriage and sought surrogacy after which they were finally able to have their own child. “We are happy that we have got a child now,” said the husband after spending a large amount of money on surrogacy. (Kumar, 2015)

Therefore, surrogacy can be seen to help both sides wherein the surrogates use the money to fulfil the demands of their family and the intending couple gets a child.

Exploitation due to Surrogacy

“I would not have done this” -A surrogate called Isha Devi from Agra states that she only decided to take up surrogacy because her family was in debt and her husband had an accident. (McCarthy, 2016)

When the Surrogacy Bill of 2016 was released, the claim was made that this was done to protect thousands of Indian surrogates who were getting exploited by this highly commercialized and money-making business of surrogacy.

When it comes to signing and understanding the contracts of surrogacy, most women do not know the exact information in the contract since it is usually in English or because it is not properly read out to them. A study done by Human Rights Law Network in 2012 studied 65 surrogates of Anand, Gujarat who stated that they only knew 3 things about the contract- first, if anything goes wrong they will be responsible since they were the ones who wanted the money; second, they will not be given any extra money and third, in special cases, they might get extra money. On top of this, none of the surrogates had a copy of their contract. When these researchers went ahead and asked for the contract from Dr. Nayana Patel’s clinic, they observed that several terms such as injections, C-sections, minimum compensation and duration of contract were not listed.  The case further records accounts of 3 women, Sudhai, Katujal and Bhanu, who were forced into giving birth through a C-section without taking any prior permissions from them and despite them being capable of delivering naturally. (HRLN, 2012)

This information goes against the claims of women have full autonomy and control over their bodies since many surrogates are forced into taking certain hormone injections and delivering through C-section without being given all the details of the contract. (HRLN, 2012)

On top of this, a large number of women are not provided with any money in case of a miscarriage. Some couples seek more than one surrogate and use miscarriage pills to eliminate the “less-viable foetuses” A surrogate who was being given pills to induce abortion had no idea about what the pill actually was and was made to believe that a miscarriage took place because of her own carelessness. Moreover, this surrogate was also not given any form of compensation. This account was supported by the HRLN study which also gave the same information. (McCarthy, 2016)

“The pregnancy is precious, the mother is not” says Manasi Mishra, head of Centre for Social Research in her study done on surrogacy. She believes that the risks are undertaken by women for becoming surrogates often outweigh the monetary benefits they receive. (McCarthy, 2016)

There is also contradictory information available which says that women are paid only 1-3 lakh rupees as compared the 5-7 lakh rupees mentioned by the fertility clinics. (HRLN, 2012)

These women do not receive any emotional counselling and are also not made aware of the risk factors of undergoing this procedure. They usually take up to 21 hormonal injections every day but are not told about what is being injected inside them. Many of them felt that they were being given to them to “cool down.” (HRLN, 2012)

A 42 year old surrogate in Delhi passed away due to serious medical complications. Her medical history revealed that she had been diagnosed with hydrocephalus, tuberculosis and depression- all of which she hid from the agency so that she would get the job of the surrogate and be allowed to earn money. (Elsa, 2019)

All of these factors indicate that surrogates are being exploited since their consent is not taken for medical procedures, they are not aware of their contracts, and they do not have autonomy over their own bodies. Moreover, they also face economic exploitation at the hands of various fertility clinics and middlemen. The most unaccounted factor is the mental health of these surrogates and how they cope with the physical and medical procedures they have to undertake.

Family Dimension of Surrogacy

When we look at both sides, that is, the surrogate and the intending couple, we can conclude that both of them place significant importance to the institution of the family. On one hand, the surrogate takes up this job in order to earn money and provide economic support to the family. On the other hand, the surrogate couple undergoes procedures and pays money to start a family.

Moreover, in this process, the surrogate often undergoes societal pressure and stigma due to which they stay in the accommodation provided by the clinic and lie about their jobs. A case study also reveals that after giving birth to the child, the husbands and the children of some surrogates become distant from them. In some cases, the entire family cuts contact with the extended family in order to avoid social stigma.

On the other hand, a news report in Times of India, 2012, talked about how women who seek surrogates often use fake tummies for 9 months to show their families and relatives that they are pregnant and how this was especially common in NRI or traditional families.

In both the cases, we can observe that a large emphasis in given to the reproductive ethos of the woman. (Kumari, 2012)

Reflection

Through analysis and review of literature, the following conclusions can be made-

Firstly, there are a tremendous amount of contradictory opinions regarding surrogacy and its procedures. This can especially be seen in the case of the most famous surrogacy clinic- Nayana Patel’s Akanksha- wherein some women talk about how their lives were saved due to this surrogacy and how they are provided with counselling and some talk about not even being told the basic details of the contract, let alone counselling.

Secondly, as the liberal feminist perspective suggests, surrogacy does allow women to have control over their bodies. However, in India, surrogacy is highly unregulated since the surrogates are not actually giving their informed consent, not getting counselling sessions, not being compensated enough and are not being told about the emotional and physical risks that surrogacy can led to. Therefore, these surrogates are being exploited due to their work. Moreover, banning commercial surrogacy is not enough since this might force various businesses to go underground due to which the exploitative nature of surrogacy will increase multi-fold and become harder to study and research.

Lastly, due to the complexities of this situation, a comparison of this commercial ban on surrogacy can be made with the 2005 ban on the Bombay Dance Bars since even though a large number of women were being provided with money, the industry itself was largely exploitative.

In conclusion, due to the highly commercial nature of surrogacy in India, the bodies of the surrogates are be commodified and compromised in the process of surrogacy. There is a lax in medical health facilities, awareness about the procedure itself and what risks it holds. The government should not entirely ban commercial surrogacy since it not only increases the chances of exploitation as businesses shift underground, it also takes away the autonomy women have over their bodies. Various critics have also said that banning commercial surrogacy also goes against Article 21 of the constitution which provides citizens with a right to privacy that includes the component of childbearing. Moreover, this sudden ban will also take away the livelihood of many. Therefore, the need is to regulate the industry and make arrangements to ensure surrogates more aware of their rights and the procedures in order to prevent them from getting exploited. In a case where the ban is still implemented due to the inability to curb exploitation, women and their households should be provided with compensation and given alternative employment opportunities.

 

References

Class Notes

Doshi, V. (2016). ‘We pray that this clinic stays open’: India’s surrogates fear hardship from embryo ban. Retrieved 23 March 2020, from https://www.theguardian.com/world/2016/jan/03/india-surrogate-embryo-ban-hardship-gujarat-fertility-clinic

Elsa, E. (2019). India: Surrogate’s death leads to concern overexploitation. Retrieved 23 March 2020, from https://gulfnews.com/world/asia/india/india-surrogates-death-leads-to-concern-over-exploitation-1.1570016221013

Ghosh, A. (2020). Explained: Fine-tuning the Surrogacy Bill. Retrieved 23 March 2020, from https://indianexpress.com/article/explained/fine-tuning-the-surrogacy-bill-6261564/

HRLN. (2012). Surrogacy in Anand: A Fact-Finding Report [Ebook] (pp. 1-35). Human Rights Law Network. Retrieved from http://www.hrln.org/hrln/images/stories/pdf/RR-fact-findings-reports-8.pdf

Kumar, V. (2015). Giving a new life to many a childless couple and a livelihood for women renting their womb. Retrieved 23 March 2020, from http://www.theweekendleader.com/Success/2280/joy-to-couples.html

Kumari, R. (2012). Surrogate Motherhood: Ethical or Commercial [Ebook] (pp. 17-98). New Delhi: Centre for Social Research. Retrieved from https://wcd.nic.in/sites/default/files/final%20report.pdf

McCarthy, J. (2016). NPR Choice page. Retrieved 23 March 2020, from https://www.npr.org/sections/goatsandsoda/2016/09/18/494451674/why-some-of-indias-surrogate-moms-are-full-of-regret

Sharma, K. (2018). 27.5 million couples in India suffering from infertility – Times of India. Retrieved 23 March 2020, from https://timesofindia.indiatimes.com/life-style/parenting/getting-pregnant/27-5-million-couples-in-india-suffering-from-infertility/articleshow/63938393.cms

Sharma, R. (2016). ‘No complaint received about surrogate exploitation’ | Ahmedabad News – Times of India. Retrieved 23 March 2020, from https://timesofindia.indiatimes.com/city/ahmedabad/No-complaint-received-about-surrogate-exploitation/articleshow/53886097.cms

Sinha, C. (2019). Is the Surrogacy Bill regressive?. Retrieved 23 March 2020, from https://www.indiatoday.in/india-today-insight/story/surrogacy-bill-2019-whose-womb-is-it-1595195-2019-09-04

SURROGATE MOTHERHOOD: HISTORY AND CONCEPT. [Ebook] (pp. 34-66). Retrieved from https://shodhganga.inflibnet.ac.in/bitstream/10603/57389/8/08_chapter%202.pdf