Editorial: Surrogate challenges

The rules governing surrogate pregnancies, notified recently by the union Health Ministry, are largely well-intended but the key part lies in their implementation. While stringent rules to regulate private surrogacy clinics are welcome, a blanket ban on commercial surrogacy could actually prove counter-productive. A well-balanced approach with a strong regulation and oversight would be helpful […]

The rules governing surrogate pregnancies, notified recently by the union Health Ministry, are largely well-intended but the key part lies in their implementation. While stringent rules to regulate private surrogacy clinics are welcome, a blanket ban on commercial surrogacy could actually prove counter-productive. A well-balanced approach with a strong regulation and oversight 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 wombs. The new rules under the Surrogacy (Regulation) Act make it mandatory for couples who wish to become parents to buy three-year health insurance for surrogate mothers. This is a progressive step that will help surrogate mothers. It is estimated that up to 15% of Indian couples seek medical advice for infertility-related problems. There is a growing tendency among them to opt for surrogacy. However, it is a field that is fraught with many imponderables and legal ambiguities. The Surrogacy Act bars commercial surrogacy, permitting it only for altruistic purposes, in the cases of couples suffering from infertility or disease. Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. 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 moralistic prescriptions would not only be impractical in terms of implementation but 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. Legalising commercial surrogacy would in fact prevent an illegal market of vulnerable surrogates from being put in dangerous situations. Countries like Israel, South Africa and Russia provide models for implementing tight laws for State-governed commercial surrogacy services. Social activists and opposition parties in India have made a strong case for the right of surrogate mothers to gain commercially through the service they offer, but the new law permits only altruistic surrogacy. While it is true that there have been many cases of exploitation of vulnerable women by unscrupulous agencies, better laws and transparent regulatory mechanisms should be the way forward. The legislation automatically assumes 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.

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