India Moves To Ban Commercial Surrogacy

NEW DELHI: The Indian government has revealed a draft law which, if passed, will ban commercial surrogacy in the country.

India has been dubbed the “surrogacy capital of the world” and the law seeks to address concerns that surrogacy in India is an unregulated business. At present, the industry is estimated to be worth more than $1bn a year.

The law will change the current surrogacy market entirely, as it will also ban people who do not hold an Indian passport, as well as Indian single parents and gay people, from having children through surrogacy.

Only Indian infertile couples who have been married for a period of five years will be able to seek a surrogate, and that too, a close relative. "This is a comprehensive bill to completely ban commercial surrogacy," Minister of External Affairs Sushma Swaraj told reporters. "Childless couples, who are medically unfit to have children, can take help from a close relative, which is called altruistic surrogacy," she said.

The first indication that India was moving to ban commercial surrogacy came when the central government informed the Supreme Court of the move in October last year. The government was responding to criticism from the apex court, as the Supreme Court expressed concern over India emerging as a major destination for “surrogacy tourism” especially as inadequate legal measures exist to protect the rights of the surrogates.

"Commercial surrogacy should not be allowed but it is going on in the country. You are allowing trading of human embryo. It is becoming a business and has evolved into surrogacy tourism," a Supreme Court bench comprising of Justices Ranjan Gogoi and NV Ramanan had said. The bench asked the government to bring the practice of commercial surrogacy within the ambit of the law.

At present, India is amongst a handful of countries (Georgia, Russia, Thailand and Ukraine included) to have legalized commercial surrogacy. It is the preferred destination for “fertility tourists”, owing to the availability of skilled doctors, ineffective legal regulation and most importantly, availability of women willing to be surrogates for, relatively, a very low cost. There are over a thousand surrogacy centres in India.

The new proposed law, unsurprisingly, has been criticised by several quarters. Many see nothing wrong with India’s booming baby market. Couples who are unable to conceive are able to experience the joy of a baby of their own, and surrogate mothers are paid the full amount at the end of the 9-month period once the baby/babies are safely delivered.

Critics have said couples desperate to have children would be left with few options. "While we need regulations to ensure that no women are forced into surrogacy, an outright ban isn't logical," fertility expert Archana Dhawan Bajaj told AFP.

However, an unregulated industry has its own pitfalls. Women like Premila Vaghila, who died after giving birth prematurely, have no recourse to legal measures, and others like her are often exploited, their ‘wombs’ being ‘put up for rent.’ Wesley J. Smith, Fellow at the Discovery Institute's Center on Human Exceptionalism, refers to the commercialization of women’s uteruses as “biological colonialism,” where individuals exploit those who are destitute and powerless to enhance their own health and happiness.