A stringent bill proposes to ban commercial surrogacy. Shouldn’t it rather ensure that surrogates are not exploited, for an outright ban might well drive the business underground?
In the nine years of my career here, I have not seen a single instance of a couple bringing along a relative who will bear their child as a surrogate mother,” says Inderpreet Kaur, head coordinator at Baby Joy, a west Delhi-based clinic that provides in vitro fertilisation (IVF) and surrogacy services to childless couples. Doctors and administrators at hundreds of infertility clinics across the country will second Inderpreet: in India, it’s almost unheard of for a surrogate mother to be related to the couple seeking treatment.
But the draft Surrogacy (Regulation) Bill, introduced in Lok Sabha last November, proposes to change that drastically – and, some would say, impractically. If passed, it will only allow a relative of a couple to bear a child for them. It will also ban commercial surrogacy, that is, paying a woman, usually poor, to bear a child for a couple. The bill also proposes some strict conditions: the couple must be married and heterosexual and must not have had a child for at least five years; a woman can be a surrogate only once in her lifetime; the surrogate should be a close relative – a sister, sister-in-law or daughter-in-law, according to external affairs minister Sushma Swaraj, who announced the bill. (She was part of the panel that drafted the bill, though the matter isn’t in the purview of her ministry.) According to her, the bill will bring surrogacy as it is practised today in line with “Indian ethos”. But this will slam the door to parenthood on the faces of thousands of married, unmarried or homosexual couples, besides singles, who choose not to adopt.
There’s no denying the commercialisation of surrogacy. It throws up serious problems, including (as the supreme court remarked, hearing a PIL by Jayashree Wad in 2015) that of a woman’s dignity. Sometimes surrogates are cheated of payment, or paid too little. Even though they may be paid handsomely, nourished sumptuously and counselled carefully, surrogates undergo all the mental and physical agony of motherhood, only to be torn from a child they have borne. Which in itself is traumatic. Surrogates have been called ‘half-mothers’, a cruel veil through which their emotional burden is all too discernable. In Politics of the Womb, Pinki Virani writes about surrogates suffering lactation pangs, often on hearing an infant cry, months after separating from the child they bore. She narrates stories of women coerced into surrogacy by husbands or families to earn money. She also red-flags the possibility of pedophiles or other perverts using surrogacy to create baby flesh to groom for their needs or for sale. Others speak of children abandoned when they are born with deformities or couples divorcing immediately after a child is born (raising the suspicion that an adoption deal might have been struck). The whole process of surrogacy needs regulation. But the tight restrictions proposed will only drive surrogacy underground and spawn a black market.
Perhaps the strongest argument against a prohibitory regimen for surrogacy is that in most cases there are no complicating circumstances: the would-be parents are ordinary folks, the would-be surrogates are willing to rent their wombs.
“No one forced me. I took this up because I need the money,” says Pinki, a 28-year-old mother of two who is now pregnant with her second surrogate child. The clinic carrying out the procedure keeps her in its surrogacy home, a flat in Chanakya Place, near Janakpuri in Delhi. Her five-year-old son and three-year-old daughter are with her. She says she is well cared for: “The fruits and vegetables I get here, I could not have when I was carrying my own children.”
Pinki is from Moradabad in Uttar Pradesh, but for seven years, she has been living in a rented room in Uttam Nagar. Her husband drives an autorickshaw and earns around Rs 800 daily. “We need the money,” she says. “So when I saw an ad by this clinic in a magazine, I contacted them and became one. My husband supported me. If it were not for this, my family had nothing much of a future.”
At the surrogacy home, she spends the day chatting with the three other surrogates, watching television, cooking for herself in the common kitchen of the 2BHK flat. Food, eggs and vegetables supplied by the clinic arrive every week. When her children return from school, she watches over them as they finish homework or join children of other surrogates in games of carrom or ludo.
Surrogate mothers at a flat in west Delhi where the clinic that has hired them keeps them sequestered to take care of their diet and medication. They are allowed to meet family members only once or twice a week, but may keep their children with them
Before becoming a surrogate, she had thought of taking up a job, but there was no one to care for the children when she would be at work. With the money she got from the first surrogacy, her family bought some land in their village. Her husband got the two children admitted in an English-medium school, a matter of pride for her. “Now, we wish to build a house of our own,” she says. “That’s why I decided to come here again.”
Maya Devi, a 24-year-old mother of one, is a first-time surrogate at the home. She too is doing it for the money. Her husband was a taxi-driver who died in an accident in February last year, after which her in-laws threw her out. She then took her four-year-old daughter and came to live with her mother in a one-room house in the Khajuri Khas area of east Delhi. To earn a living and put her daughter through school, she found a job in a factory which paid her Rs 2,500 monthly. But that was not enough. A woman in the neighbourhood who had been a surrogate told her about the clinic and the procedure. She was taken by the idea of earning some Rs 4 lakh over 10 months and agreed to rent her womb. “My mother was against this,” she says. “But I made her understand that bearing a child to earn money is better than indulging in illegal work.” She had an embryo transplanted in her womb in July last year and, at the time of meeting, was due to deliver in April.
Both Pinki and Maya Devi are unable to comprehend the logic behind the proposed ban. “If the government bans this, will it listen to our problems and give us an opportunity to earn?” Maya Devi asks. “If someone becomes a mother because of our help, they bless us and we are able to earn money as well. What else do we need? I could hardly earn anything, but this way, I will save money for my daughter’s future.” And Pinki says wistfully, “We are getting money, a childless couple is blessed with a child. How can anything be wrong with that?”
Dr Anoop Gupta, of the Delhi IVF and Fertility Centre, calls the proposed ban a “headless thought”. He says that if it comes through, no one will benefit: it will deprive thousands of infertile couples of a chance to have their own child; besides, surrogates will lose an opportunity to earn money. “I’ve not come across a single case of a surrogate being exploited or complaining about how she has been treated,” he says. “Surrogate mothers are most unhappy about this proposed ban. I don’t see a reason behind it. In any case, there are no babies available for adoption. The government could have made the rules more stringent, keeping in mind the interests of the surrogates.”
Like Gupta, other doctors say the proposed ban does not solve problems. Some agree that there might be unscrupulous elements who short-change surrogates on payment, do not take care of them should the delivery prove complicated, or push them into becoming baby factories. Such exploitation, they say, is what the bill must have addressed: giving surrogates a fair deal for their emotional and physical trauma is what it must have addressed instead of just proscribing commercial surrogacy.
It was in the early 2000s that IVF clinics in India started offering surrogacy services. (In fact, the first baby born through surrogacy at the Akanksha Clinic in Anand, Gujarat, which has made the town a byword for the procedure was in 2002; in that case, the woman who played surrogate was the child’s grandmother). But there has been no law governing the practice. Artificial reproduction techniques (ART), including surrogacy, were covered under the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005, to which changes were made in 2008, 2010 and 2013. The 2013 amendment allowed foreigners to bring frozen embryos and find Indian surrogates. A draft ART bill put together by the Indian Council of Medical Research (ICMR) has been in the cold storage for many years.
Very few Indian couples went in for surrogacy in the early 2000s, but it brought a rush of foreigners to India. These were largely singles or homosexual couples, though there were a few heterosexual couples too. Surrogacy tourism was born. Activists raised several questions over the years, and in response to Jayashree Wad’s PIL of January 2015, the supreme court in October 2015 asked the government what it was doing to halt commercial surrogacy. In October 2015, the ICMR notified surrogacy clinics that they should not entertain foreigners, and in November 2015, the government decided to stop giving visas to foreigners who were visiting India to rent a womb. Finally, a separate draft Surrogacy (Regulation) Bill was drafted. It’s now before a parliamentary health committee, which is to submit a report in three months.
Sneha Banerjee, of SAMA, a Delhi-based resource group that works on issues of women’s health and rights, has her own fears. “The network through which the business of surrogacy has flourished in India is strictly informal. It has been spreading its roots for the last decade. If you suddenly bring in a draconian policy move, all the institutions run the risk of becoming a black market. We have experienced this in the case of organ transplants,” she says.
It’s easy to take the moral ground and say that poor women are being exploited, says Banerjee. “But one must understand that poor women can make their own choices. What’s important is to ensure that the rights of surrogate mothers are not violated. There is a need to regulate the medical technologies they are subjected to. But the government should not dictate the kind of choices they should be making.” She also says that, since surrogacy flourishes entirely in the private healthcare sector, implementing the ban will bring its own challenges. “It’s essential that the government take into account the opinion of all stakeholders for any kind of policy change. The voice of surrogates has always been missing... these are the women who are negotiating hard circumstances.”
Like Dr Gupta, Anurag Chawla, a senior partner at Surrogacy Laws India, says he hasn’t heard of any woman who has become a surrogate under pressure from her husband or other family members. “What I’ve heard are stories of their lives undergoing a change for the good,” he says. However, he thinks the proposed bill does not make any provisions to protect surrogates, should they be exploited. “It’s assumed that banning surrogacy will protect them,” he says. “In fact, most of them take up this job for money, which they use to buy a house or fund their children’s education.”
The other aspect, he says, is that couples who want a child will do anything. “It will create a black market. Already, people are going to Bangkok, Nepal or Cambodia to get surrogates to bear children. They’ll go and spend money there if surrogacy is banned,” he says. “Adoption is a complicated process. There are huge delays and there are also not enough children to be adopted. People go for surrogacy because they want their own biological child.”
Once a woman agrees to become a surrogate, she signs a contract with the clinic that is performing the procedure. They are usually kept in homes such as the one Pinki and Maya Devi are in. They are allowed to meet family members once or twice a week, but may keep their children with them. Such sequestering is necessary, says Kaur, of Baby Joy clinic. “They come from poor families, and do not have good food intake. Some face domestic violence.”
Parents commissioning a child are charged Rs 10 lakh-15 lakh, depending on the clinic. Surrogates are given Rs 3 lakh-5 lakh, usually in tranches. The first two tranches are paid out after they undergo a first round of treatment. Once the embryo is transferred to their wombs, they are paid Rs 5,000 per month till delivery. The remainder is paid out after the baby is delivered. Some clinics take it upon themselves to counsel the surrogates and their families on how best to invest or utilise the money. “We prefer not to give the entire money in cash,” says Kaur. “We counsel them and make them aware about avenues through which they can invest. Some opt for fixed deposits and some take out insurance policies.”
In the initial years, it used to be difficult to find women who understood the concept and were willing to be surrogates. Gradually, over the years, the lavish payments surrogates received helped in removing the stigma associated with such pregnancies. Even so, it remains difficult to pick surrogates, for they have to be healthy to begin with. While clinics cast a wide net, a few women turn up at the clinics themselves to offer to bear others’ children. Demand for surrogacy exists, of course. Kaur points out that it’s not as if only the rich opt for surrogacy: “We’ve had cases of couples taking loans for the procedure. Also couples who have applied for adoption but given up because of the delay and turned to surrogacy.”
Meanwhile, in a few weeks, Maya Devi’s journey as a first-time surrogate will be over. She will invest some money to secure her daughter’s future and use some to meet day-to-day expenses. She’ll look for a job too. But, she says, “If the need arises, I wouldn’t mind becoming a surrogate again.”
(The story appears in the April 1-15, 2017 issue of Governance Now)