It took barely a decade for India to earn the reputation of being the surrogacy capital of the world, the go-to destination for hundreds of international couples seeking surrogate wombs for their embryos at relatively cheap rates. Despite steady criticism for being a system that exploits the bodies of poor women, India’s $2.3 billion reproductive tourism industry is thriving, with more than 350 fertility clinics offering surrogacy services in both cities and small towns.

Now, in one fell swoop, the union government is set to pull the reins on this rent-a-womb industry. On October 28, the Centre filed an affidavit in the Supreme Court stating that it would prohibit all foreigners, non-resident Indians and PIOs (Persons of Indian Origin) from availing of surrogacy services in India.

If this decision is upheld, Indian couples will still be allowed to rent wombs from surrogate mothers, but this doesn’t mean much to the stakeholders of the surrogacy industry.

“Across fertility clinics in India, almost 70% of surrogacy cases are for foreign clients, and the rest for NRIs and PIOs – Indian couples form barely 5% to 7% of the clientele,” said Dr Manasi Mishra, head of the research division at Delhi’s Centre for Social Research, which has conducted two studies on the nature of the commercial surrogacy sector in India.

For now, commercial surrogacy – which involves paying a woman to carry a couple’s fertilised egg through pregnancy – is legal but unregulated. The government has been attempting to regulate the sector since 2010, through the Assisted Reproductive Technologies regulation bill.

The 2014 version of the draft regulation bill already proposed to ban foreigners from seeking surrogacy in India. By now adding NRIs and PIOs to the banned category, the government could bring the industry to an almost complete halt – a prospect that would have delighted activists six or seven years ago. Today, however, even those against the notion of commercial surrogacy are opposed to the government’s decision on foreigners choosing surrogacy.

‘It will go underground’

“The industry has proliferated so much in the past few years that if you ban it, it will simply go underground,” said Mishra, whose research on Indian surrogate mothers reveals the ways in which women are exploited by the system. “There are many people in the chain between intended parents and surrogates, and they will not simply give it up.”

Concurring with Mishra’s view is one of the most visible ambassadors for the surrogacy industry in India – Dr Nayna Patel, a gynaecologist and head of the Akanksha Fertility Clinic in Anand, Gujarat. Patel has been delivering babies through in-vitro fertilisation for 12 years, but ever since she began doing transnational surrogacy deliveries in 2007, business began to boom and Anand became a surrogacy hotspot for eager parents from around the world. She now has at least 75 surrogate mothers waiting for delivery at any given point in her clinic.

“If a ban on foreigners is imposed, it will have a huge negative impact not only on these surrogates but also on a whole lot of others,” said Patel, who gets the majority of her foreign clients from the US, Britain and Canada. “The first ones to earn in the surrogacy system, in fact, are the Indian embassies in different countries, who charge a fee for taking up a case.”

The ban would also affect agents, middlemen, hoteliers and other branches of India’s medical tourism sector, says Patel. “The government needs to realise that if they impose such a ban, the surrogacy sector will resurface in an illegal manner.”

Not as empowered as they seem

If a ban on foreigners seeking Indian surrogates would inevitably push surrogacy underground, the primary concern for Mishra and other activists remains the rights of the women choosing to become surrogate mothers.

Doctors like Nayna Patel in Anand and Shivani Shachdev Gour in Delhi view surrogacy as a means for women to empower themselves.

“At our clinic, surrogacy fees for Indian and foreign couples are the same – between Rs 11 lakhs and Rs 13 lakhs – of which Rs 3 lakhs-Rs 4 lakhs go to the surrogate mother,” said Gour, general secretary, Indian Society of Third Party Assisted Reproduction. Gour’s infertility clinic in Delhi has delivered 1,039 babies through surrogacy so far, of which 60% were for foreigners. “A lot of migrant women come to the city to become surrogates. Compared with Indian couples, foreigners keep in touch with surrogates and offer them a lot more beyond the fee.”

Patel claims surrogates earn anything between Rs 5 lakhs-Rs 11 lakhs at her clinic – and 25% extra if they give birth to twins. “A lot of foreign parents specially send money to surrogates for their children’s education or for buying homes,” she said. “They don’t see it as exploiting poor Indian women – they don’t look down on Indian women.”

But in 2008, the Centre for Social Research surveyed surrogates in Anand, Jamnagar and Surat, and found that the women were overwhelmingly poor, with minimal education. The majority of them were either domestic workers, construction labourers or casual labourers, earning between Rs 1,000 and 3,000 a month. Often, they opted for surrogacy to be able to pay off debts, buy homes, help their husbands’ businesses or fund their children’s education. In many cases, the women were pressurised into becoming surrogates by their husbands.

Even though the guidelines of the Indian Council of Medical Research require that negotiations between surrogates and commissioning parents must be conducted independently between them, the study found that representatives of the infertility clinic always served as a barrier to direct communication between the two main parties. Illiterate surrogates had to rely on the same representatives to explain the nature of the written contracts they signed, and most of the surrogates were not given a copy of the contract.

The survey also indicated that the surrogates were often made to undergo painful IVF sessions as many as 20 to 25 times to ensure that she was impregnated with a healthy foetus. The ART draft regulation bill seeks to limit this to a maximum of three treatment sessions.

‘We need better regulations’

“Surrogate mothers are already in a non-negotiable situation because they are semi-literate and not aware of their rights,” said Mishra. “If the industry goes underground, my fear is that these women – particularly migrants – will have even less bargaining power.”

This is why many people on both sides of the commercial surrogacy debate believe that the solution to the industry’s controversial problems lies not in banning foreigners from surrogacy but in increasing and improving regulations. The ICMR guidelines are not legally binding, because they are just guidelines, but a strong law on Assisted Reproductive Technologies could monitor the industry without banning a large section of it.

“Right now, the draft bill doesn’t talk about any monitoring system,” said Mishra. “We need to have fixed payments for all surrogate mothers so that there is no bargaining. We need some kind of nodal agency that can verify the backgrounds of intended parents.”

For now, the draft bill to regulate surrogacy in India is still open to suggestions and objections from the public.