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Mainstream, Vol XLVIII, No 13, March 20, 2010

Surrogacy in India: A Thorny Issue

Saturday 20 March 2010, by Namita Singh Jamwal


Surrogate motherhood—an arrangement in which a woman carries and bears a child for another person or persons, but takes no ownership of the child born—has raised moral, ethical, social and legal questions about both—the woman and the ‘commissioned baby’.
The practice of renting a womb and getting a child is like outsourcing pregnancy. The business volume of this trade is estimated to be around $ 500 million and the numbers of cases of surrogacy are believed to be increasing at a galloping rate. Though the exact magnitude of this practice in India is not known, inquiries reveal that this practice has doubled in the last few years and normally women from small towns (that is, the urban poor) are chosen for surrogate motherhood.

While there can be no or little objection to altruistic surrogacy (where a friend or relative acts as the surrogate so that no money changes hands), commercial surrogacy (undertaken for the sake of money, hence a commercial transaction) is a subject which has evoked serious concerns among social scientists, conscientious thinkers, women activists and policy-makers.
The proposed legislation is premised to protect all parties—the genetic parents, surrogate mother and the child—and resolve some vexed legal questions or uncertainties, for example: Is it legal in India to become a surrogate mother? Will the child born to an Indian surrogate mother be a citizen of this country? Whether the birth certificate and passport will be issued to the foreign couple at the time of immigration and who will arrange such certificate etc. The new Assisted Reproductive Technology (Regulation) Bill and Rules, 2008, states that the surrogate mother can receive monetary compensation for carrying the child in addition to health-care and treatment expenses during pregnancy. But the surrogate mother has to relinquish all parental rights over the child once the amount is transferred and the birth certificate will be issued in the name of genetic parents. The age-limit for a surrogate mother is between 21 and 45 years. Single parents can also have children using a surrogate.

Nontheless, commercial surrogacy is an
area which is fraught with social, ethical and moral questions and dilemmas of far-reaching importance. It is a subject which has crucial social implications and it may give rise to intractable dilemmas for the Indian society and its social fabric. The Ministry of Women and Child Development, which is examining the subject of ‘surrogate motherhood’ in India for bringing out a comprehensive legislation, must seek to address some critical social issues relating to paid pregnancy which have wide implications or repercussions for society as a whole. The
ease with which relatively rich foreigners are able to ’rent’ the wombs of poor Indian women creates the potential for exploitation. Though for the government it will become an added feature in its ‘Incredible India’ promotional campaign to publicise India as a medical tourism destination, the crucial question is that in a country crippled by abject poverty, how will the government ensure that women will not agree to surrogacy just to be able to eat two square meals a day? Reports have appeared where young vulnerable girls from orphanages were ‘hired out’ for surrogacy and the surrogate mothers themselves never got any money; and even if they got any money, the poor women had little choice.


The combination of poverty, illiteracy and the lack of power that women have over their own lives in India in general are a deadly combination. There are instances of desperately poor women in India selling their own (biological) babies because they can’t feed the rest of their family
For the woman, even though she knows that she is undergoing a transaction, parting with or handing over the baby could be an event causing her terrible emotional conflict which at times may be quite devastating for her. Surrogacy is not like donating a kidney; bearing a child is an emotional issue. Driven by the circumstances, a woman, in a way, forces on herself a nine-month-pregnancy which could prove/turn out to be a woefully agonising event in her life.That once or twice upon a time, their mother went through motherhood purely for money or commercial reasons could severely dent the self-esteem of the children when they grow up and come to know about it.

The negative aspects of surrogate motherhood need to be seriously considered. Surrogate motherhood is likely to give rise to a new class of agents/intermediates whose business would be to offer monetary inducement to the poor women for surrogacy with the connivance of some medical practioners and exploit their vulnerability in the way the notorious kidney racketeers in India have done. The unhealthy practice could lead to the creation of what can euphemistically be described as the springing up of ‘baby ‘factories’. There should be control so that it does not become an open market. Most countries of the world have realised the down-side of surrogacy and do not permit it. The basic questions are: Are wombs meant for renting, and are babies commodities to be planted and harvested? Are women child producing machines? The Ministry of Women and Child Development, which is supposed to be holding consultations across the country, needs to address these core social issues which have wide importance for society. While the enactment of the law may be fine, much will, however, depend on whether and to what extent the government would be able to enforce the law, that is, the quality of enforcement.

A doctorate from Jamia Millia Islamia, Dr Namita Singh Jamwal has varied experience of working (as a social worker and senior counsellor) with NGOs in and around Delhi, including UNHCR and FPAI. Her current interests cover contemporary issues, notably those relating to women including marital harmony.

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