Inside India’s surrogacy debate

Surrogacy — the practice of a woman carrying a child for someone else — can bring biological children into the lives of parents unable to carry their own. But the business of surrogacy too often involves exploitation of the women involved.

This is why India, the commercial surrogacy hub of the world, is attempting to ban the practice entirely under The Surrogacy (Regulation) Bill, 2019. The bill is widely expected to be passed some time in 2020 and would dissolve a US$2.3 billion-a-year industry. The intention is to prevent the mistreatment of surrogates and move to an altruistic model.

Commercial surrogacy includes some monetary benefit or reward, but can come with risks. Altruistic surrogacy prohibits any monetary compensation to the surrogate mother beyond necessary medical expenses, and strict rules outline how and when these expenses are covered. But experts are warning that altruistic arrangements can be exploitative in different ways and are instead pushing for regulation.

The debate in India brings to light the many complexities of global health policy when made top-down, including the unintended impacts on women and the intersection of ethics, international markets and progressive gender policy making. For India the question has become: should women have the agency to choose commercial surrogacy as a career, despite dangers in the industry? The answer provides insight into the regulation of women’s bodies globally, labour laws and global ‘health tourism.’

The business of commercialized surrogacy in India began in 2002, and the country quickly became one of the top surrogacy destinations for foreign couples. This move coincided with many countries, including Canada, banning commercial surrogacy and moving to highly regulated altruistic systems.

Because India has a high proportion of skilled doctors and a large population of young women eager to make money that might otherwise be beyond their reach, “India had the perfect opportunity to make an amazing surrogacy system,” says Sally Rhoads-Heinrich, a surrogacy consultant and owner of Surrogacy Canada Online. She thinks the involvement of exploitative third-party businesses removed the possibility for relationships between surrogates and parents, and therefore India missed an opportunity to bring humanity into such a personal process.

Bronwyn Parry, professor of social science, health and medicine and head of the School of Global Affairs at King’s College London in England, researches surrogacy in India. She says clinics advertising for commercial surrogates are “usually inundated with women.” She adds that “there are so many applicants that they only choose about one in every 10 young women.”

The demand for surrogates is also soaring globally, driving up the price in the developed world. In the United States, having a baby by surrogate can cost more than US$100,000. But the cost of an Indian commercial surrogate is a fraction of the price, as low as US$10,000.

This helps explain why an estimated 12,000 foreigners travel to India each year to hire a commercial surrogate.

Surrogacy services in India are primarily facilitated through third-party clinics and consultants who match intending parents with surrogates. They are also responsible for organizing medical appointments and assigning costs. And some force surrogates to live in cramped fertility clinics where their everyday movements are monitored.

Arijit Dey, senior resident in forensic medicine and toxicology at the All India Institute of Medical Sciences, New Delhi, says “most of the money siphoned out of a couple is being spent by the business.” This can leave surrogates with less than half of what is paid.

But the exploitation of surrogate workers goes far beyond unfair pay. There have been many horror stories documented in the media, including women being forced into C-sections, numerous pregnancy complications, and even death. A common practice is to plant embryos in two or more surrogates. If multiple women become pregnant, the clinic will secretly abort fetuses, blame women for their “carelessness” and not pay them.

The need for a change in policy

The stories are countless and gruesome. Parry says this bad press internationally put pressure on the Indian government to propose the ban.

The ban is meant to stop these inhumane practices, lift women out of their controlling relationships with surrogate clinics and restore the health and dignity of surrogate workers. While India’s minister of health says the ban may encourage more adoption, Parry disagrees: “The compulsion to have a biologically related child will not go away.”

This is why experts are warning that making commercial surrogacy illegal is a dangerous move. “I don’t want surrogacy banned,” says Dey. “It has to be regulated.” This argument is based in evidence that shows that when practices with high demand, such as sex work or illicit drugs, are made illegal, they go underground. And when things move into unregulated environments, they are at higher risk of being exploitative.

Under such conditions, surrogate workers would risk their access to proper medical care and jeopardize the transparency of surrogate contracts, resulting in limited legal justice in instances of abuse in an illegal system.

Feminist activists argue that the ban would be a paternalistic move imposed by predominately male Indian policy makers. It would take the agency of choice away from women, whose employment options are already limited in a poor country. “Many women work and expend labour in all sorts of industries that are equally as poorly regulated and work under equally as distressing terms and conditions,” says Parry.

These jobs include sweatshops, recovering toxic waste and domestic services — industries that are also highly unregulated and oppressive, but in which women are paid considerably less. So some women turn to surrogacy as a viable source of income to sustain themselves and their families. The money they receive can be a lifesaver during economic turmoil, such as the loss of a spouse or when escaping an abusive relationship.

When the ban was first proposed in 2016, a large number of women tried to become surrogates before it was too late. And Parry says many existing surrogates actively protested the ban, arguing it would be a violation of their agency and right to choose their own forms of employment.

In place of commercial surrogacy, altruistic surrogacy is being proposed with a strict set of conditions. Only heterosexual Indian couples with proven infertility who are within a specific age range, who have been married for at least five years and who have no children are eligible. This excludes foreign, homosexual, unmarried couples and single intending parents.

Meanwhile, an altruistic surrogate must be 25 to 35 years old, a close relative of the intending parents, be married, have a child of her own and obtain a certificate of medical and psychological fitness. She may be a surrogate only once in her life and cannot be paid beyond medical expenses.

Global connections

Does this system work? Surrogacy consultant Rhoads-Heinrich points to the Canadian context, saying she finds altruistic surrogacy “exploitative.”

Rhoads-Heinrich says Canada offers lessons for India on the practice — for instance, that altruistic surrogacy is extremely difficult to achieve in the first place. “We have 50 to 100 women that apply every month. Only five will actually go forward when they find out what’s involved.”

But one-sixth of Canadian couples experience infertility and many are looking to have biological children. Infertility has been rising in Canada for the last 30 years, largely due to women having children later in life. “A lot of these intended parents are suffering because they can’t find surrogates,” says Rhoads-Heinrich. “A lot of Canadians are simply giving up.”

Others are travelling to India to purchase surrogacy services. With the proposal of the ban, however, couples are looking for alternative destinations. Cheap commercial surrogacy is popular now in Cambodia, Kenya, Ukraine and Mexico.

The boom in surrogacy has been influenced by a rise in global ‘health tourism,’ where people travel to countries where certain health procedures and practices are unregulated or legal. The ease of travel and communication across countries makes ‘health tourism’ easier than ever before. As well, surrogacy is becoming more popular because fewer people are adopting children due to the lengthy processing periods.

Canada has seen an influx of foreign couples coming to the country for free surrogates. In 2016 and 2017, almost half of the babies born to Canadian surrogates in British Columbia were for foreign couples. “My biggest frustration is the number of international intending parents coming to Canada because they hear surrogates are free,” says Rhoads-Heinrich.

The lack of altruistic surrogates reflects the facts that it asks a lot of women and is a financially risky move. “There’s just so many restrictions on their life and they aren’t being paid for it,” Rhoads-Heinrich says. As a result, many will even go into debt or lose their jobs.

A similar situation could unfold in India under an altruistic surrogacy system. But it would be further influenced by familial pressure. “I think that it is likely that people will be pressured by their family members to perform a mentally, cognitively and physically demanding labour. And moreover, for no compensation whatsoever,” says Parry.

So, what’s the alternative? “I believe surrogacy should be licensed and regulated in Canada,” says Rhoads-Heinrich.

Parry shares the same sentiment for India. “I think it’s a practice that ought to be centrally organized.” She proposes a limited number of state-run clinics or highly regulated private clinics.

Dey is among those who are convinced the bill will pass in 2020 and when it does, he says, “it will take three to six months to be implemented and we’ll see changes in a year or two.” Meanwhile, Parry is feeling hopeful because, on November 21, the bill was sent to a select committee of India’s parliament for further review. The committee’s report will be released in the first week of the next session of parliament in February.

“I would urge the committee to draw upon the expertise of people both in India and [elsewhere] who’ve worked on this for a number of years, who only want the best for Indian surrogacy regulations,” says Parry.