A blanket ban on commercial surrogacy in the country is an idea that sounds good in intention but could actually prove counter-productive. A well-balanced approach with a strong regulation and oversight, instead of an outright ban, would be helpful, not only for millions of infertile couples to have a biological child of their own but also for the women who lend their womb. The Surrogacy (Regulation) Bill, 2019, passed by the Lok Sabha recently, imposes a total ban on commercial surrogacy. Only close relatives will be permitted to act as surrogates for ‘ethical altruistic’ reasons. And, only a married woman in the age group of 25 to 35 having a child of her own will be allowed to act as a surrogate to the intending infertile couple who again should be close relatives. Such a sweeping legislation with moralistic dimensions will not only be impractical in terms of implementation but will also restrict the options for childless couples. It is important to appreciate the socio-economic context under which women choose to become surrogate mothers. For some women, surrogacy offers a safer and better option than other means of securing their lives. While it is true that there have been many cases of exploitation of vulnerable women by unscrupulous agencies, better laws and transparent regulatory mechanism should be the way forward instead of a blanket ban. The legislation automatically assumes, quietly naively, that all exploitation will somehow vanish if close relatives are allowed to be surrogates.
It is also important to recognise that in the name of altruistic surrogacy, the women will not be compensated for the reproductive labour. The concept of ‘altruistic’ surrogacy doesn’t carry weight in a practical world and puts the family in a more complex situation, especially in view of the cultural conditioning of most Indians on matters like surrogacy. There is every danger that a blanket ban on commercial surrogacy will only encourage illegal and unethical trade. At present, an estimated 5,000-6,000 surrogacy births occur in India every year. It must be pointed out that commercial surrogacy is legal in Western countries but under a stringent set of regulations. It provides economic benefits to the surrogate mother. For instance, a surrogate mother in India gets paid around Rs 5 lakh. By confining the surrogacy option to heterosexual couples and leaving out unmarried singles, LGBT persons and divorcees, the new law takes a restrictive view of what constitutes a family. Due to a lack of legislation to regulate surrogacy, it is being misused by the mushrooming clinics and middlemen. Over the last decade, the number of infertility and surrogacy clinics has gone up from a few to over 2,000 in the country.