Given how, sans regulation, surrogacy sweatshops had been mushrooming—putting the health of thousands of women who were drawn into commercial surrogacy at grave risk—there has long been a need for a law to govern this. However, the Surrogacy (Regulation) Bill that the Lok Sabha has just passed is hardly the desired instrument—at least not in its current form. The Bill bans commercial surrogacy altogether, allowing only “altruistic” surrogacy. Moreover, only couples who have been married, and childless, for over five years can opt for surrogacy, and the surrogate has to be a close relative of the couple and married, too. The Bill, in effect, prohibits single persons, widowed (-ered), divorcees, live-in and homosexual couples, even married couples with children, from taking this route.
Commercial surrogacy in India, legalised in 2001, poses a massive ethical and health concern even as it has become $1-billion industry. Thanks to bargain basement prices compared to other jurisdictions where commercial surrogacy was allowed or unregulated—and these are only a handful, with most developed jurisdictions banning commercial surrogacy—India became a top “fertility tourism” destination. This came at devastating costs for thousands of poor, vulnerable women. Even though they received only a fraction of what the client spent—already a low sum—many, either ignorant of the accompanying risks or in spite of these, opted to rent out their wombs more than once or even twice, and at intervals that were highly unsafe. Indian surrogates, as a 2015 study led by a Danish doctor found, were completely unaware of risks of implantation of multiple embryos, foetus reduction or caesarian sections to time delivery as per the client’s convenience.
However, banning commercial surrogacy isn’t the solution. In the absence of a willing, closely related surrogate, even married couples are left in the lurch. A better solution to the surrogacy sweatshop problem would have been to allow commercial surrogacy while strictly enforcing provisions that safeguard the surrogate’s health and commercial interests. Even now, the government should consider gradually relaxing the ban—once surrogacy sweatshops are history, the proposed National Surrogacy Board could perhaps be instrumental in allowing regulated commercial surrogacy. The government must take a cue from the fact that regulation by the Central Adoption Resource Authority took care of most of the problems that adoption in the country was earlier beset with, while an outright ban would have served nobody’s interest. Also, in the face of changing social realities, it is discriminatory to not allow unmarried, divorced or widow-ed/ered individuals and live-in and gay couples the right to have a biological child. Indeed, the Parliamentary Standing Commitee of Health and Family Welfare—12 of whose 31 members were from the ruling BJP—had called for the surrogacy legislation to be made more inclusive, recommending widening “the ambit of persons who can avail surrogacy services by including live-in couples, divorced women or widows”.