Regulating the Surrogacy Industry – A Feminist Perspective: Sarojini Nadimpally, Deepa Venktachalam and Sneha Banerjee

Guest Post by SAROJINI NADIMPALLY, DEEPA VENKTACHALAM and SNEHA BANERJEE of SAMA, a resource group for women and health.

The press briefing on commercial surrogacy by Minister of External Affairs Ms  Sushma Swaraj, on 24th August 2016,  did not come as a surprise to many of us who have been advocating for the rights of surrogate mothers and the regulation of the Assisted Reproductive Technology (ART) industry. Many of the points mentioned in her speech were already in the Draft Assisted Reproductive Technologies (Regulation) Bill 2014. Since 2015, the Ministry of Home Affairs (MHA) had stopped issuing visas to foreigners for commissioning a surrogacy. The Supreme Court of India is currently hearing arguments in a Public Interest Litigation (PIL) demanding a prohibition or ban on commercial surrogacy.  In a recent hearing, the Supreme Court asked the government to develop the framework for the regulation of the  ART and surrogacy industry in India.

The latest regulatory move extends prohibitions in place in the draft ART Bill of 2014, banning commercial surrogacy altogether, and permitting only altruistic surrogacy (without payment), and only for one category of people – heterosexual Indian couples who have been married for five years and do not have any children, specifically excluding NRIs. Only close relatives can be surrogates and there are penalties that are absent in the Draft ART Bill of 2014. The draft ART Regulation Bills (2010, 2014) mentioned marriage as a mandatory clause, with ‘couple’ who could access surrogacy arrangements, defined as a man and woman living in a marital relationship for two years; the current Surrogacy Bill says 5 years.

This approach obviously discriminates against queer couples whose marriage is not legal in India; and as for ‘single’ persons – they are persona non grata. This is highly problematic, moralistic and discriminatory. The briefing was an outpouring of the nation-family-culture rhetoric and patronizing morality. We have not read the current Surrogacy Regulation Bill yet as it is not available in the public domain and hence our concerns are based on the media reports.

The global-transnational commercial surrogacy industry entails impressive revenue projections; the CII-Mckinsey report (year), often quoted in studies on surrogacy, predicted a USD 225 million earning. It is important to understand that this industry cashes in on the patriarchal premium of having one’s “own” biological child to maintain purity of bloodlines. It thrives on essentialising motherhood and also gives an impetus to the eugenic push for a ‘perfect’ child.

Further, only “altruistic surrogacy” with close relatives, i.e. within the “family” is going to be allowed according to the new Bill.  Why should women be expected to be altruistic and/or burdened with the assumption that they are ‘essentially’ altruistic? We are all aware of the exploitative nature of the ‘family’ where women will be subjected to various kinds of pressures including coercion to act as surrogates.

SAMA has always demanded for stringent regulation to regulate existing practices in the booming ART industry, for instance,

a) health risks to the surrogate and ethical issues involved in practices like transferring more than two embryos and  later performing fetal reduction; too many surrogacies; age of surrogate mothers,

b) issues around fair payment, compensation, insurance for surrogate mothers,

c) issues around citizenship of the child if commissioned by non-Indians

d) upholding the rights of surrogates and the rights of children born through surrogates.

The death of Yuma Sherpa (an egg donor who died because of medical negligence) clearly revealed the unethical manner in which the ART/Surrogacy clinics function without appropriate protocols, facilities and emergency medical care. It is also important to note the role of third party agents, surrogacy agents who play a key role in this industry but have never been under any kind of regulation.

While the new proposal seeks to prohibit commercial surrogacy, the vast terrain of ARTs/ IVF, which are part of a huge industry that use irreversible procedures and immensely medicalised reproduction, have been left largely untouched. The Surrogacy Bill is not yet in the public domain and we do not know what is proposed with the preceding ART Bills, and what clauses have been included in the current Surrogacy Bill.

However, we, as part of the women’s movement, must strive towards bringing the focus back on certain fundamental  issues – the way legal engagement with surrogacy is placing a premium on the heteronormative family, marriage and the patriarchal obsession with one’s “own” biological children. Interestingly, the IVF industry is invoking “reproductive autonomy” and “women’s right to choose” by appropriating a feminist language to safeguard their business.

For those of us who are asking for regulation of the industry, the basis is  on the grounds discussed earlier, and also based on concerns regarding implementation  in the context of an  industry that has a widespread and deeply entrenched network. A ban might not address the situations that cause women to enter surrogacy arrangements, and may possibly lead  to an increased risk of black markets.

The need of the hour is to have a more nuanced, informed debate and bring back into the public domain, issues around essentialising of motherhood, the promotion of compulsory parenthood for all, and genetic essentialism, that are the foundations of the ART industry. The issue of infertility has received little attention, with the discussion on infertility completely absent in the current debate.

Discussions on adoption have been inadequate. The screening criteria and processes of adoption are often perceived as deterrents by those who may want to engage in the adoption process.  This precisely enables the ART and surrogacy industry to promote ‘infertility treatment’  as less cumbersome and comparatively less time consuming than adoption.

It is imperative that the women’s movement at this juncture strongly and effectively articulates position(s) and concerns vis-a-vis ARTs and surrogacy. Currently, there is not much discussion within the movement to engage with the issue and work towards an adequate response to the government’s approach towards Surrogacy. There is no mobilization so that those involved, in this case – surrogates – are able to come together in an organized manner so that their voices be heard and heeded seriously.

Discussions around the practice of surrogacy must engage with the many pressing dilemmas indicated above, which go much beyond the binary of commercial versus altruistic surrogacy.

2 thoughts on “Regulating the Surrogacy Industry – A Feminist Perspective: Sarojini Nadimpally, Deepa Venktachalam and Sneha Banerjee”

  1. The law on surrogacy must address the ‘socio- economic’ issues of under-privileged women and their health security. It should also take into account the status of child and the problems faced by surrogate mothers emotionally as well as socially and provide adequate counselling for the mother and family involved.


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