India’s commercial surrogacy ban could spawn a thriving black market

The ban on commercial surrogacy may run the risk of pushing the trade underground, endangering those the law seeks to originally protect—the mother and the child


The Central government, on Monday, introduced The Surrogacy (Regulation) Bill, 2016 in the Lok Sabha to impose a blanket ban on commercial surrogacy. Photo: Reuters
The Central government, on Monday, introduced The Surrogacy (Regulation) Bill, 2016 in the Lok Sabha to impose a blanket ban on commercial surrogacy. Photo: Reuters

Most developed countries do not allow for commercial surrogacy, choosing to not tread the path of exploring what the unintended consequences of biological economics may be.

A few nations like Russia, Georgia, Ukraine, and half a dozen US states do allow it but they are the absolute minority.

That it may potentially be a financially attractive proposition for disenfranchised women is moot when it comes to how a host of states view the matter, which may soon include India in its list.

The Central government, on Monday, introduced The Surrogacy (Regulation) Bill, 2016 in the Lok Sabha to impose a blanket ban on commercial surrogacy.

The law will seek to restrict the scope of surrogacy through stricter rules but which leave the door of altruism ajar.

To get the government’s nod, Indian heterosexual couples legally married for at least five years, will need to produce a medical certificate verifying their inability to procreate, and seek a married relative with at least one biological child who has not been a surrogate prior.

That is the maximum extent to which the altruism door will stay ajar.

Anyone else—single individuals, homosexuals, live-in couples, foreigners, divorced, Person of Indian Origin, OCI-card holders—not fulfilling these criteria will find an inflexible state machinery.

The Cabinet gave its approval to the government’s move to give regulatory teeth to curb the country’s growth as a surrogacy hub in late August this year.

With more than 2,000 assisted reproductive clinics, creating a market worth an estimated $2 billion, the only regulation so far had been the Indian Council of Medical Research’s non-enforceable National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology Clinics in India, first issued in 2005.

The government’s assertion that the blanket ban on commercial surrogacy is to stymie exploitation—by middlemen and family—holds ground.

There have been numerous instances reported of family coercion and agents in women’s wombs being rented out—taking a massive toll on her own health and body, as well as the child’s.

However, the regulatory mechanism under the bill primarily focuses on surrogacy, ignoring various other assistive reproductive technologies.

Experts point out that it is also exclusive in its stance, seeking to deny otherwise suitable individuals, who are within their rights to demand access to regulated surrogacy services, based on their sexual orientation or marital status.

Since the demand for surrogacy is not expected to wane, such restrictions, regardless of well-placed intentions, may prove to be disastrous in the longer run as it will run the risk of pushing the business of surrogacy underground, endangering those the law seeks to originally protect—the mother and the child.

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