Parliamentary committee reopens the surrogacy debate, says commercial surrogacy should be allowed

A Parliamentary Standing Committee on Health and Family Welfare last week criticised the government for taking a “moralistic” stand in drafting the Surrogacy Regulation Bill, 2016, which bans commercial surrogacy and allows altruistic surrogacy. Surrogacy is a procedure by which a woman is artificially inseminated, and carries and delivers a baby for someone who wants a child but cannot have one.

The Bill, which has been cleared by cabinet and was introduced in the Lok Sabha in November, prohibits commercial surrogacy – that is, paying women to be surrogate mothers. Instead, the surrogate has to be a close relative of the couple wanting a child and the surrogacy must be based on altruism. The Bill proposes that only couples who have been married for five years and are infertile should be allowed to use surrogates and prohibits surrogacy for single men and women, live-in couples, homosexuals, and foreigners.

The Parliamentary Standing Committee has now come out in favour of continuing to allow commercial surrogacy, stating that altruistic surrogacy can amount to “forced labour”. The committee report presented to the Rajya Sabha points out that payments to women who have been surrogates have helped them educate their own children, build homes and fund medical treatments of their family members.

However, the claim that surrogacy is a tool of economic empowerment for vulnerable women is a double-edged sword. As Daisy Deomampo, assistant professor of anthropology at Fordham University, points out: “Surrogacy may have helped women out of a financial bind, but it certainly did not fundamentally change their economic situations.” Deomampo has studied the surrogacy market in India extensively and interviewed couples, surrogate mothers, doctors and others involved in the trade.

While the parliamentary committee makes a case for commercial surrogacy based on economic empowerment of women, it is also a fact that there are huge profits of the commercial surrogacy industry – worth $2 billion or about Rs 13,000 crore – that will be hit hard if commercial surrogacy is banned.

The parliamentary committee consulted representatives from the Ministry of Women and Child Development, the Ministry of Home Affairs, the Ministry of External Affairs, and the National Commission of Women. It also discussed the issue with the Federation of Obstetric and Gynaecological Societies of India and the Indian Society of Third Party Assisted Reproduction, which are doctors’ associations. The only civil society member consulted was journalist and activist Pinki Virani.

The chairperson for National Commission for Women Lalitha Kumaramangalam and others have suggested that instead of making surrogacy a tool of economic empowerment for poor women, the government should focus on “providing education, skill development and training so as to empower them (women).” Kumaramangalam has supported the provisions of the Surrogacy (Regulation) Bill, 2016 that ban commercial surrogacy.

Surrogacy cannot be seen as an employment opportunity, said Deepa V from SAMA, a non-profit resource group for women and health.

At the same time women’s rights activists agree with the committee’s stance of allowing commercial surrogacy since many believe that allowing only altruistic surrogacy will push the surrogacy market underground leading to further exploitation of women.

“I think that surrogates ought to be adequately compensated and provided for if they voluntarily consent to becoming surrogates for persons desirous of having a child through the process of surrogacy,” said Veena Johari, a human rights lawyer in Mumbai.

The parliamentary committee has recommended the creation of a centralised national database to monitor the surrogates, surrogacy clinics and commissioning parents, with state surrogacy boards submitting data on surrogacy services and arrangements to the National Surrogacy Board. It has recommended that the amount of compensation to surrogates should be fixed by relevant authorities. “The compensation so fixed should not be the subject matter of bargain between the commissioning couple and the surrogate mother,” said the committee.

At the same time, the committee has asked that a woman should be allowed to become a surrogate only once in her lifetime. However, a surrogate can undergo four rounds of in-vitro fertilisation to conceive.

Altruistic versus commercial

The Surrogacy (Regulation) Bill, 2016 allows only infertile Indian couples who have been married for five years and have no children to opt for altruistic surrogacy where there will be no monetary exchange between the commissioning parents and the surrogate. The parliamentary committee has countered the suggestion, saying that “pure altruistic drive for any substantial and meaningful contribution of someone else’s life is unreasonable to expect in today’s economic and social environment.”

The Bill also proposes that a close relative of the commissioning couple should be their surrogate. This, the committee said, could lead to more exploitation. “Not every member of a family has the ability to resist a demand that she be a surrogate for another family member. As such within family, surrogacy might become even more exploitative than compensated surrogacy.” The committee states women who might be related or unrelated to the couple should be permitted to become their surrogate. Johari agreed and said that there was a need for regulation to ensure that a surrogate, whether related to the couple or not, is voluntarily undergoing the procedure and that her rights are well protected.

To this end, the committee has stressed on the need to pass the Assisted Reproduction Technology Bill which has been pending since 2008. “It is a fact that surrogacy procedures cannot be conducted without assisted reproduction techniques and therefore, mere enactment of the Surrogacy Bill would not serve the purpose of the controlling commercialisation of the surrogacy facilities across the country in the absence of regulation of assisted reproductive clinics and banks where surrogacy is being conducted as ART Clinics and Surrogacy Clinics are not separate,” observed the committee.

Science, not morality?

The committee has explicitly criticised the proposed bill for making moralistic assumptions saying that the government has not based its proposal to allow only altruistic surrogacy on “any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner.”

Though the committee has recommended amending the section in the proposed bill which states that only couples who are married for five years will be able to avail of the option of surrogacy. The committee observed that the Bill discriminates against medically infertile couples. Couples who are not infertile and who are free from medical complications can attain parenthood without waiting five years.

“This time bar of five years plausibly violates the right to reproductive autonomy, and an individual’s right to exercise his choice,” said the committee.

The committee also criticised the Department of Health Research for recommending the Bill’s provision that widows and divorced women be disallowed from having children through surrogacy. “Besides, the decision to keep live-in partners out of the purview of the Bill is indicative of the fact that the Bill is not in consonance with the present day modern social milieu that we live in and is too narrow in its understanding,” observed the committee.

However, the committee stood by the provision that disallows foreign nationals – apart from Non Resident Indians, Persons of Indian Origin and Overseas Citizens of India – from using surrogates India and remains silent on the rights of unmarried individuals to commission surrogacy.

“Anyone should be allowed to commission surrogacy, regardless of the person’s gender identity, marital status,” said Deepa V from SAMA.

She pointed out that the committee recommends a change in the definition of infertility, reducing it to one year from five years. “This is a concern as it is likely to benefit the fertility industry,” she said. “A larger volume of people will be identified as infertile sooner on the basis of this one year bracket.”

Even though the committee states its recommendations are aimed at recognising reproductive rights of women, the committee has said that a woman must have the consent of her husband before she opts to become a surrogate mother.

“On one side, the committee is talking about reproductive rights and on the other it expects the surrogate woman to seek her husband’s consent,” said Deepa V.

The recommendations of the committee are not binding. It is up to the members of the parliament to discuss and move amendments to the proposed Bill, while considering the recommendations made by the committee.

Other recommendations include:

• Ban on sex selective techniques and surrogacy which may lead to exploitation of surrogate mother and child.
• The committee recommends that the Bill should have specific provisions for prohibition of twiblings - two children conceived in vitro at the same time from sperm and eggs from the same people but carried by two different surrogates.
• The surrogate mother should receive insurance for at least for a period of six years.
• The surrogate child should not only be insured but there should also be provision in the form of bank guarantees and fixed deposit.