India is on its way to impose a blanket ban on and criminalise commercial surrogacy. On Monday, the Indian government called this move “the need of the hour” and passed the Surrogacy (Regulation) Bill, 2019, in the Lok Sabha (Lower House of the Parliament), which has put in place strict conditions on what constitutes legal surrogacy in India.
In India, the surrogacy market is thriving. Commercial surrogacy was legalised in 2002, though it was later banned in 2018. Surrogate mothers in India reportedly earn anything between Rs 4,00,000 to Rs 1.2 million (US$5,628-16,885) per birth, depending on the location and the clinic. But the proposed bill wants to ensure that this booming industry comes to an end.
The proposed bill only allows those Indian couples who have been legally married for at least five years, to opt for surrogacy. Additionally, the surrogacy will only be allowed for “altruistic” reasons for the married couple, who should be aged between 23-50 (for female) and 26-55 (for male). The surrogate mother herself should be a “relative” to the couple, along with being “an ever-married woman having a child of her own and between the age of 25-35 years”.
The bill has come in the light of India’s position as the ‘rent-a-womb’ capital of the world—a cheap and barely regulated market that has exposed not just the dire financial constraints of surrogates but also the reproductive trafficking business that’s emerged from it. "Due to lack of legislation to regulate surrogacy, the practice of surrogacy has been misused by surrogacy clinics, which leads to rampant commercial surrogacy and unethical practices," said the bill.
The surrogacy industry in India has also been previously called out by women’s rights groups, who’ve said that these ‘baby factories’ are only beneficial for the rich, and are a trap for poor, uneducated women who don’t understand the implications on their bodies. A study conducted on infertility clinics in New Delhi recently found that women have poor awareness about the risks and complications of repeated egg donations and pregnancies.
The bill, however, has also drawn immense criticism, asking for a regulation instead of a blanket ban. When it was first tabled in the Lok Sabha in 2018, the Health Minister JP Nadda said there was support “keeping the Indian ethos in mind”, and that the intention was to “save the family”. The definition of a “family”, however, is “a registered husband and wife”, which excludes gay couples, single men and women, and an unmarried couple. There’s also no clarity on whether there will be any clinics offering commercial surrogacy services at all, and if yes, how will they be run.
In the political circles too, there’s resistance. Imtiaz Jaleel of All India Majlis-e-Ittehad-ul-Muslimeen said that the proposed bill is “anti-children”, while the Bharatiya Janata Party’s Member of Parliament (MP) Hema Malini said that the law should be “inclusive and practical”. MP Anubhav Mohanty added that the government should define 'close relatives' and that a complete ban is a “very extreme step”.
The bill also doesn’t clarify who a 'close relative' who is eligible to be a surrogate is. Also, in restricting the criteria to 25-35 years of age, and with at least one child, it really narrows down the chances of finding such options. There’s also not much clarity on whether this will apply to surrogate mothers who are already pregnant.
And then there’s the overarching argument that this bill denies women agency over their own bodies. As Madhavi Menon, director, Centre for Studies in Gender and Sexuality at Ashoka University, writes on Scroll, “With the passage of the Surrogacy (Prevention) Bill, women will be cut off from what could be a guaranteed source of income. Motherhood will be mystified as sacred, and women will be punished for being independent.”
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