"Womb for Hire": Need for a fresh look

Navigating the Complexities of Commercial Surrogacy in India: Balancing the Right to Reproductive Choices, Ensuring Surrogate Welfare, and Harnessing the Potential for Socio-economic Empowerment.

Understanding Surrogacy: A Lifeline for Childless Couples

In an era defined by medical marvels and technological innovations, the agonizing issue of infertility still haunts countless couples, often exacerbated when tied to female fertility complications. These couples see in surrogacy a glimmer of hope—a pathway to fulfill their dreams of parenthood. In its simplest terms, surrogacy involves a 'surrogate' mother carrying a pregnancy for another individual or couple, the 'intended parents'.

Until recently, childless couples had to rely solely on adoption, frequently within their own extended families. However, with recent medical advances in assisted reproduction, such as surrogacy, the dream of having biological children is no longer an unattainable goal for these couples. As such, it is imperative that our legal system evolves in tandem with these technological advancements. This ensures that legal complexities do not pose unnecessary barriers in the journey of these couples towards realizing their aspirations of becoming parents.

Malti Marie Chopra Jonas, the surrogate daughter of the celebrity couple.

Indian Surrogacy: Previously an Unregulated Landscape

In a bid to control the rampant and hitherto unregulated surrogacy sector, the Indian government introduced the Surrogacy (Regulation) Act, 2021. The Act is aimed at ensuring the safe and ethical practice of surrogacy in India. However, in its attempt to safeguard rights, it seems to inadvertently stifle certain freedoms¹.

Key Aspects of the Surrogacy (Regulation) Act, 2021

The Act introduces several notable features:

Outright Ban on Commercial Surrogacy: The Act completely prohibits commercial surrogacy, leaving room for only altruistic surrogacy, where surrogate mothers offer their services voluntarily, without receiving any financial compensation.

Restrictions on Surrogacy Practice: The Act stipulates that surrogacy can only be carried out in registered surrogacy clinics, and surrogates must be Indian citizens aged between 25 and 35, who have already had a child. The intending parents must also be Indian citizens, infertile, or have a medical condition that prevents a successful pregnancy.

Establishment of a National Surrogacy Board: The Act envisages a National Surrogacy Board, responsible for overseeing the implementation of the Act, ensuring surrogacy clinics adhere to the regulations.

While the Act sets out to streamline surrogacy practices, it effectively prohibits commercial surrogacy, potentially closing the door to many potential beneficiaries.

Surrogacy Act: Where It Oversteps

Several aspects of the Act have drawn criticism for their perceived overreach:

• Limited Access: The Act only permits heterosexual couples married for at least five years to avail of surrogacy, excluding many potential beneficiaries, such as single individuals, homosexual couples, and live-in partners.

• Narrow Definition of Infertility: The definition of infertility as per the Act is limited, excluding many medical conditions that could warrant surrogacy.

• Autonomy of Surrogates: The Act disallows surrogates from opting out of pregnancy at any stage, potentially infringing on their rights to reproductive and bodily autonomy.

• Potential Misuse: The requirement for a surrogate to already have a child may result in women being pressured into motherhood before they are ready, merely to qualify for surrogacy.

• Oversights in Parental Rights: The Act fails to provide clarity in case of divorce, death of one parent during surrogacy, or the birth of multiple babies or babies with congenital defects.

Celebrity Endorsement of Surrogacy vs. Ordinary Citizen's Struggle: An Existing Dichotomy

With surrogacy gradually gaining a strong foothold in popular culture, it is increasingly being recognized and adopted by public figures and celebrities as a viable path to parenthood. Indian film stars, including some with an extensive international following, such as Nayanthara², Shah Rukh Khan, and Priyanka Chopra, have candidly embraced surrogacy to welcome new members into their families. Their openness signals an evolving societal acceptance, highlighting the significance of considering every possible path to achieving the joy of parenthood, thereby elevating the often marginalized issue of infertility to the limelight of public discourse.

The narratives of these celebrity surrogacies, often pursued and executed abroad due to the legal intricacies present in India, regularly seize the spotlight in glossy magazines and across various social media platforms. Yet, beyond these glamorous tales lie the unspoken hardships endured by countless ordinary Indian couples on their journey towards parenthood. The urgency to acknowledge their struggles, often overlooked, and respond with greater empathy is ever-increasing, particularly among political, bureaucratic, and medical profession circles. These real-life experiences underscore the pressing need for a well-regulated surrogacy framework in India, a system that empowers aspiring parents to realize their dreams of starting or expanding their families within their own homeland.

Unleashing the Potential of 'Womb for Hire'

The Act's shortcomings spotlight the potential of a 'womb for hire' system, where surrogacy is commercialized and surrogate mothers are fairly compensated for their services.

Economic Empowerment: This model could present a path towards economic empowerment for Indian women, particularly those coming from underprivileged backgrounds. It could provide them with an opportunity to secure their futures and improve their socio-economic status without being compelled to engage in precarious or exploitative employment.

The inflow of foreign capital, resultant of a regulated commercial surrogacy industry, has the potential to catalyze this process. It can provide a sustainable and viable income generation channel for healthy, consenting Indian women. The possibility of earning a substantial income through surrogacy could lead to transformative improvements in their lives and their communities.

In essence, a well-managed commercial surrogacy system can not only support these women in achieving financial independence, but also uplift their socio-economic standing, imbuing them with the capacity to create better futures for themselves and their families.

Medical Tourism: A well-regulated commercial surrogacy industry could act as a powerful lever for India, enabling it to capitalize on the burgeoning global medical tourism sector. Home to state-of-the-art medical facilities and a repository of skilled healthcare professionals, India has the potential to evolve into a preferred destination for international prospective parents. The resulting boost to the economy could be substantial, with foreign nationals contributing not only to the surrogacy process but also to ancillary services such as accommodation, transportation, and tourism.

Image generated using #AIart, with “DreamStudio”.

Global Population Balance: The potential advantages extend beyond national borders and economic benefits. At a global scale, commercial surrogacy could play a role in addressing the issue of population stagnation and decline that many countries currently face. With prominent figures like Elon Musk vocally advocating for a higher global birth rate to avert a potential demographic crisis or implosion, commercial surrogacy could offer a solution, fostering global growth and stability. “If people don’t have more children, civilization is going to crumble,”Musk proclaimed recently.

Towards more diverse society: The overseas offspring of surrogacy, upon returning to their parents' homeland, could also contribute to a richer, more diverse social fabric in their respective countries. To ensure this transition occurs smoothly, the respective countries' citizenship laws would need to be amended to eliminate legal challenges for these children to gain the nationality of their parents.

Government Revenue: Lastly, the government could consider imposing reasonable taxes on overseas clients, turning this into a revenue-generation avenue. These funds could be funneled back into public services, benefiting society at large.By doing so, commercial surrogacy could potentially contribute significantly to the country's GDP.

Balancing Opportunities with Safeguards

While the 'womb for hire' system holds great promise, it must be framed within stringent safeguards:

• Robust Legal Framework: A robust legal framework is crucial to protect the rights of surrogate mothers and intended parents.

• Holistic Support System: Surrogate mothers should have access to comprehensive healthcare and psychological support throughout the process to navigate the physical and emotional complexities.

• Fair Compensation: Regulations must ensure that surrogate mothers receive fair remuneration, commensurate with the physical and emotional efforts involved in the process.

• Protection Against Exploitation: Checks and balances must be instituted to prevent exploitation of surrogate mothers.

• Privacy and Confidentiality: The privacy and confidentiality of all parties involved must be legally protected.

• Children's Rights: The rights of the child born out of surrogacy, including their right to know their biological origin, must be protected.

  

  Nayanthara and Vignesh Shivam, with their kids born through surrogacy. (pic ET)

Proposal not against our cultural ethos:: The revered Indian epic Ramayana enshrines our cultural ethos in the verse—"Janani Janmabhumishcha Swargadapi Gariyasi" (जननी जन्मभूमिश्च स्वर्गादपि गरीयसी), which translates to "Mother and motherland are superior even to Heaven." These lines resonate with the supreme value we, as a society, accord to mothers and motherhood, a reverence woven into our cultural fabric since ancient times.

In the ancient Indian epic of Mahabharata, there's a compelling illustration of surrogacy. Queen Gandhari's maid, bearing Dhritarashtra's child on her behalf, can be viewed as an early reference to the concept of surrogacy, signifying its existence and acceptance in India's historical and cultural narratives.

In advocating for a well-regulated 'womb for hire' policy, we are not suggesting a departure from our cherished cultural beliefs. Rather, we are suggesting a trajectory that harmoniously integrates this high regard for motherhood with modern reproductive solutions. This approach, built on the premise of voluntary participation, respects women's autonomy and ensures their dignity. It amplifies the spirit of motherhood, enabling a wider group of women, particularly those from economically disadvantaged backgrounds, to partake in the miracle of life. It creates opportunities for these women to significantly enhance their socio-economic status and secure their futures, all while operating within a framework of comprehensive regulation and ethical practices.

A Leap Towards Empathy: While it's true that the affluent can circumnavigate the rigors of domestic law by opting for surrogacy abroad, the silent plight of ordinary Indian couples from the middle and lower socio-economic strata remains largely unaddressed. It's this empathy deficit within our system that needs rectifying as we frame our surrogacy policies. The aspiration is to create an environment where couples from all walks of life can realize their dreams of parenthood within their homeland's supportive legal framework, not confined to the pages of high-end magazines.

Reevaluate the Adoption Process: Moreover, it's essential to pair this surrogacy policy reform with a broader reevaluation of our adoption processes. As it stands, the path to adoption is often riddled with bureaucracy and delays, making it an arduous journey for prospective parents, both at home and overseas. A more streamlined, compassionate process can provide another viable route to parenthood, enhancing the inclusivity of our reproductive framework.

A policy package consistent with our culture and beliefs: In navigating these transformative waters, we must ensure that our compass stays steadfast, pointed unwaveringly towards the welfare, rights, health, and dignity of all those involved. Our guiding principles should reflect respect for choice and a commitment to empowerment.

In this spirit, the concept of 'womb for hire' can evolve from a contentious topic into an empowering instrument of change. By anchoring this evolution in the sanctity of motherhood, a value deeply revered in our society, and by embracing modern reproductive choices, we can pave the way for a more compassionate and progressive future. This way, we ensure that the narrative of surrogacy and motherhood in India is not just about the elite few but a testament to the resilience and dreams of every aspiring parent in the nation.

1. Click on the link below to read the Surrogacy (Regulation) Act, 2021 in pdf format.
https://drive.google.com/file/d/1A5L3bYTdf0qkYERVp_dRMGeKhNIVthh9/view?usp=drivesdk

2. https://economictimes.indiatimes.com/news/new-updates/nayanthara-vignesh-surrogacy-row-tamil-nadu-govt-gives-clean-chit-says-they-didnt-break-any-law/articleshow/95118451.cms