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Surrogate mothers pose for a photograph at a clinic near the city of Ahmedabad, in August 2013. File photo: Reuters

Will India’s surrogacy ban drive childless couples and poor women underground?

  • Commercial surrogacy has been viewed as a win-win by couples struggling to conceive and women looking to escape poverty, even as exploitation was rife in the industry
  • But whether an outright ban will work remains to be seen, with observers fearing desperate parties will turn to an underground market, leaving poor women even more vulnerable
India

Gita Parmal, 35, is due to give birth this October – an emotional occasion for both her and a couple who has been dreaming of a child for years.

As a surrogate mother, she will be paid a “life-changing” sum of 600,000 rupees (US$8,000) to carry their baby, money that will go towards her two children’s education and a new home.

“Women like me can never earn the money it takes to build a small house,” says Parmal, who is from India’s western state of Gujarat. “Not in a whole lifetime.”

How India’s strict new surrogacy law is practically prohibition

Parmal is one of the last women in India to legally carry babies for a fee. Following the Surrogacy (Regulation) Act passed in December, commercial surrogacy has been outlawed. Only altruistic surrogacy, where a relative carries a baby for a childless couple, is now allowed.

Surrogacy refers to the procedure in which an embryo, created from a woman’s egg fertilised by a sperm in a lab, is implanted into the uterus of another woman who carries the baby to term before handing it back to the expectant couple.

India’s surrogacy industry took off around 2010, as demand for the procedure grew internationally, prompting one media outlet to call the country “the world’s baby factory” due to its affordable prices.

In a country where having a family is viewed as the most important part of life, many Indians who struggled with conceiving also turned to surrogacy to fulfill their wishes to have children.

The procedure became so well-accepted, even Bollywood celebrities such as Shah Rukh Khan, Aamir Khan, Shilpa Shetty and Karan Johar became parents via surrogacy.

A gynaecologist, right, performs a ritual to a surrogate mother. File photo: Reuters

On the surface, such deals appeared to be a win-win proposition for the parties involved: the clinics made money, childless couples became parents, and the surrogates – usually from rural villages – gained a chance to escape poverty.

But given the power imbalance in such agreements, not every party kept their end of the deal. There were surrogates who were not paid the amount they were promised, while others were exploited by both the couple and the middlemen or clinic.

Because the sector was unregulated, hundreds of clinics did not adhere to proper standards of care, leaving surrogate mothers vulnerable to illness.

Some women were also pressured to enter into surrogacy contracts by their own husbands or in-laws. Given their subordinate status in patriarchal India, they had little choice but to be compliant.

One surrogate mother in New Delhi said her husband needed the money to start a water-filtering business. “When it failed after a year, he wanted me to become a surrogate again to try another business,” she told a local media outlet. “My in-laws supported him and I had no choice.”

Dr Nayna Patel, right, examines a surrogate mother at a hospital in Anand, India. File photo: AP

For those who came to the decision on their own, the procedure was viewed as a genuine ticket to a better life.

“This lump sum will be life-changing for my family, and the government is wrong to ban it and deprive other poor Indian women of the same opportunity,” said Parmal, who was staying at the Akanksha Hospital owned by Dr Nayna Patel, one of the biggest names in India’s surrogacy industry.

Patel is an infertility and IVF specialist, whose clinic used to be filled with surrogates bearing babies for childless Indian couples or foreigners.

She said she received a “fair number” of calls from childless couples horrified at the new law. Some are now considering flying to Kenya, the United States or Georgia to find surrogates there.

“I think couples will start challenging the law in the courts,” Patel said. “My fear is that when demand outstrips supply, it moves underground and when that happens, surrogate mothers will be even more vulnerable to exploitation than before.”

Surrogate mothers staying at the Akansha Clinic in Gujarat with their faces covered to avoid being identified. Photo: Handout

The Indian Surrogacy Law Centre, an independent legal consultancy firm, is waiting to see what happens next. One of its concerns is that the legislation ignores unmarried or same-sex couples who want to start a family.

The centre’s chief consultant, Hari G. Ramasubramanian, said he has also received inquiries from frantic couples not knowing which way to turn. He shares Patel’s worries that a black market will emerge.

“In a country like India where there is a stigma attached to being childless and yet society doesn’t encourage adoption, then couples will become desperate to find someone, anyone, to become a surrogate,” he said.

Penalties under the new law include five years in prison, although it remains to be seen how officials will enforce the rules.

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Dr Manish Banker, an infertility specialist in Ahmedabad, said he doubts that it will be amended, given the prolonged scrutiny and debate the bill received in parliament and how it took into account the needs of all stakeholders.

“We have to remember the law only impacts a minuscule percentage of the Indian population and we have to remember the stories of exploitation,” he said. “There were plenty of middlemen and clinics who ripped women off.”

Banker argued that no one can dispute the fairness of the law, which clarifies precisely the procedure for an altruistic surrogacy, who can avail themselves of it, the required medical condition of the mother, and the standards and protocols that clinics have to follow to protect the mother. This detailed regulation is necessary, he said.

“As a doctor, I find it protects everyone involved, including the babies who were sometimes left without a birth certificate because the courts didn’t know what name to use because surrogacy wasn’t regulated,” Banker said. “It is a sound law because the same altruistic principle is also applied to organ donation in India.”

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