The argument is that surrogacy—either as a commissioning mom or as a commercial (or just plain good-hearted) surrogate—is a woman’s choice; her right to exercise her “agency". To be a mother or to want to help another woman become a mother is women’s business.
Yet our medical associations and regulatory bodies, our Parliament and judiciary, where laws, policies and precedent are established, are overwhelmingly male. In the Lok Sabha, the Bill on surrogacy was proposed back in 2016 and finally passed on 5 August by a house where women comprise 14% of all MPs—incidentally, the highest ever in our history.
Under the provisions of the Surrogacy (Regulation) Bill, 2019, commercial surrogacy is banned and only ethical, altruistic surrogacy allowed. Only infertile Indian couples married for more than five years may opt for it. And surrogacy boards constituted at the national and state levels will regulate this whole business.
The Bill must clear the Rajya Sabha before the President signs it into law but already there are concerns.
Chief amongst these is that the Bill is already out of step with contemporary times. If, for instance, the Supreme Court has read down Section 377, the exclusion of gay men or lesbian women might not withstand legal challenge.
The exclusion of foreigners is also mystifying. One case of abandonment has been reported—one twin was left behind in 2015 by an Australian couple of Indian origin who said they could not support both children—and there is no data to the contrary. Will this exclusion also include people of Indian origin and NRIs (non-resident Indians)?
Moreover, how does the insistence on five years of marriage come into logical play if a wife, say, does not have a uterus and will never, therefore, conceive regardless of the length of marriage?
I am not even wading into feminist concerns over the state definition of marriage in a country where changing social mores are seeing an increasing number of live-in partners and norms about “family" itself are changing.
Finally, there are legitimate concerns about how the state plans to regulate and monitor altruism. Insisting that surrogates be blood relatives doesn’t cut it because that excludes friends who might legitimately want to help each other. And even within the extended family, how do you ensure that it’s not the poor relatives, the widows, the abandoned wives, who are pressurized by their more well-off relatives to do a “good deed" for the larger welfare of the family?
Underlying these concerns is the right of a woman to be a mother. Indian society tends to imbue motherhood with a special, exalted status. In a country where 240 million girls are married before the age of 18, and society expects married women to become mothers as soon as possible—which newly-wed woman hasn’t been asked for “good news"?—women’s “choice" becomes a loaded term rooted in a deeply patriarchal culture.
It’s in this context that we need to revisit and examine the idea of women’s agency. Are women’s choices to become either a mother or a surrogate free of their social references? How does family pressure play out? How free is a woman’s choice to become a mother—and how much do you put down to social expectation?
In the surrogacy business—an industry worth an estimated $400 million (around ₹2,860 crore now) in India, according to a 2012 UN study—choice and agency are frequently used words. Five years ago, I visited Nayana Patel’s thriving surrogacy practice in Anand, Gujarat. For all the criticism about “womb-renting", I found the elegant Dr Patel to be remarkably candid. She took no umbrage at any of my questions about ethical practices and left me free to visit Surrogate House, where some 60 surrogates lived in various stages of pregnancy, without an escort or a minder.
Recently, I called Dr Patel again and she put me in touch with a few women from what could well be the last batch of her commercial surrogates.
The wife of a call centre employee who was diagnosed with cancer opted for her first commercial surrogacy to pay for treatment. “If not for the ₹4 lakh I earned in my first surrogacy, my husband would have died for lack of medical treatment," she told me on the phone. She is now pregnant again, waiting to deliver somebody else’s child. “I am carrying a child for someone who doesn’t have a child. And I am being paid for it. There is nothing wrong with this work," she says.
Like many IVF practitioners, Dr Patel has followed her own set of regulations: All commercial surrogates had to have had at least one child; all needed written consent from their husbands; they could not, of course, use their own ova, as established by existing medical guidelines; and there was a cap on two commercial surrogacies per woman. They were also all required to live in Surrogate House.
And yet there were deeply uncomfortable questions for which there are no easy answers. In the surrogacy bazaar, the buyers and sellers were clearly marked by socio-economic status. Women—the wives of autorickshaw drivers, daily-wage earners, small shopkeepers—were opting for commercial surrogacy and, yes, it was their “choice", but the reasons varied from medical expenses for the treatment of a husband or child to buying a house or a piece of land for the family.
I too applauded the idea of women’s “agency", but there was something deeply unsettling about the stark coldness of a rate list: so much extra for delivering twins, so much more for providing breast milk. The fact that all the surrogates I have ever questioned seemed to deliver by C-section, even those who had delivered their own babies normally, struck me as strange. And, of course, all questions of “women’s agency" vanished when it transpired that a surrogate was carrying twins and the commissioning parents only wanted one. One of the women I had spoken to said she had begged the doctor to let her keep one of the twins she was carrying. But they were not her babies, or her choice. She was made to undergo what is known clinically as foetal reduction.
No discussion or law on surrogacy makes sense unless you simultaneously talk about adoption. Adoption too is a choice, but somehow women’s agency doesn’t seem quite so urgent when we talk of the need to simplify procedures.
I have asked every commissioning parent I have spoken to about why they didn’t consider adoption. Responses invariably revolve around red tape or the process being too cumbersome and time-consuming.
Dr V, one half of a doctor couple who is waiting for a commercial surrogate to deliver their child in March 2020, says he was left with “no option" after his wife had a hysterectomy following cancer treatment. “We were desperate and the future looked very dark," he says. Fortunately, he says, his wife’s eggs had been frozen before her surgical procedure, but time was running out and there were concerns about how long her eggs would remain viable.
Why not adopt? I ask. “That was my plan B, if the embryo failed," he says, explaining that an adopted child might not have been readily accepted by his extended family. “Still, I had registered my name with the government agency a year-and-a-half back but got a very poor response and so gave up in frustration."
I press on and ask about the commercial aspect of his transaction with the surrogate. “I was very picky about the surrogate and interviewed her personally to make sure she did not feel exploited," he says. He is compensating her for her services— ₹4 lakh—and has provided her with life insurance in order to “secure her future".
Nothing about surrogacy is simple. The proposed surrogacy law is not perfect; far from it. There is every danger that it will push the business underground and result in cash payments over which surrogates will have little control. Instead of empowering or protecting surrogates, it may take away their agency altogether.
Namita Bhandare is a Delhi-based journalist who writes frequently on gender issues.