Who Benefits From India’s Move to Ban Commercial Surrogacy?

by | Sep 23, 2016

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About Gaurav Mukherjee

Gaurav Mukherjee is Regional Correspondent for India. He is a lawyer and an S.JD. candidate in Comparative Constitutional Law at the Central European University, Budapest. His doctoral research focusses on inter-institutional dialogue in socioeconomic rights adjudication.


Gaurav Mukherjee, ‘Who Benefits From India’s Move to Ban Commercial Surrogacy?’, (OxHRH Blog, 23 September 2016), <https://ohrh.law.ox.ac.uk/who-benefits-from-indias-move-to-ban-commercial-surrogacy/>, [Date of Access].

The press release on the latest draft Assisted Reproductive Technology (Regulation) Bill (the Surrogacy Regulation Bill) categorises India as “a surrogacy hub for couples from different countries”, but raises alarm over unethical and exploitative practices. Although the most recent draft is not yet publicly available, initial reporting suggests a few noteworthy features.

First, it completely bans the exchange of consideration between the surrogate mother and the couple seeking a surrogate child. This leaves only what is called “altruistic surrogacy” available to the commissioning couple, who have to be married for a minimum of five years and have no other children, produced biologically or otherwise. Additionally, the surrogate mother must be a relative of either the husband or the wife.

Second, access is restricted to only ‘couples’, which is strictly defined as “a male person and female person who live together in a shared household through a relationship in the nature of marriage which is legal in India”. This excludes single persons, divorcees, same-sex couples, as well as any person who is not a citizen of India, a non-resident Indian or an overseas citizen of India. The Supreme Court of India in 2014 upheld the constitutional validity of Section 377 of the Indian Penal Code, which criminalises private sexual conduct “against the order of nature”. The decision is widely criticised as having criminalised the gay community in India, while the question of gay marriage remains unanswered.

There appear to be three parallel narratives in the present conundrum surrounding surrogacy in India. The first is an individual’s reproductive rights, which encompasses the right to found a family. India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, which urges states parties in Article 16(1)(e) to ensure that women have access to the same rights as men “to decide freely and responsibly on the number and spacing of their children”. The present legislation appears to impinge upon this right, but it remains to be seen whether Article 16(1)(e) will be a valid ground for judicial challenge to the Surrogacy Regulation Bill.

The second is the surrogate mother’s sexual and bodily autonomy, which allows her to decide what is best for her. While it may be true that unlicensed intermediaries often reap a considerable proportion of the financial benefit due to surrogate mothers, there is scant evidence indicating that living conditions are made any worse for such mothers. In fact, many studies show the opposite. Designing policy based upon anecdotal evidence leads many to question the wisdom behind the outright ban, even as India struggles to address its slow rate of job creation. While India is not alone in moving to ban commercial surrogacy, critics say that a complete moratorium is likely to push the practice underground and put surrogate mothers at greater risk of exploitation by unlicensed clinics without regard for their health and safety. Regulation may be more effective. An analogous area is the transfer of human organs, especially kidneys, which is banned in India, except through “altruistic” means. Instead of curbing the practice of commercial organ transfer, the ban has pushed the industry underground, creating the well-documented black market for kidneys.

The third narrative is what Amrita Pande terms the “commodification of motherhood”, which often results in the exploitation of women in a number of low-income countries, and serves to “reify the structural inequalities based on class, race, and nationality between the buyers and sellers of wombs”.

To date, India has had little to no regulation of its thriving surrogacy market. The sole exception being a set of voluntary guidelines from the Indian Council For Medical Research for assisted reproductive clinics, which focused on the commissioning couple and did little to safeguard the rights of surrogates. Any attempt at further regulation was quickly lobbied away by the industry. With the passage of the Surrogacy Regulation Bill by the Indian cabinet, it looks set to be debated in the legislature. Opposition parties like the Congress have publicly committed to campaign against a law that it says is out of sync with ground realities and drafted without adequate stakeholder consultation. While the Surrogacy Regulation Bill has garnered much international attention, greater public debate within the country is called for before it is passed into law.

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