Surrogacy is defined as an arrangement wherein a woman (the surrogate mother), often through a legal agreement, carries and delivers a child for another person or persons with the latter becoming the parent(s) of the child after birth. The status of surrogacy has varied across countries ranging broadly from unregulated (Chile, Iran, Colombia, Japan, Sweden, Nigeria etc.), altruistically and commercially legal (Russia, Kazakhstan etc.), altruistically legal but commercially illegal (Belgium, Denmark, UK, New Zealand, South Africa etc.) to both altruistically and commercially illegal (Germany, France etc.). In India, surrogacy is in the process of being regulated, with commercial surrogacy—compensating a surrogate mother with more than just medical expenses; it was legalised in India in 2002—being completely prohibited.
The concept of surrogacy is not new to India. Our mythology is replete with instances of surrogate mothers. Rohini, the first wife of Vasudeva, was the surrogate mother of Balarama, the seventh child of Vasudeva and Devaki. Surrogacy in this case was necessitated because Kamsa, the brother of Devaki, had vowed to kill all children born from his sister’s womb. Surrogacy in ancient times was not restricted to mothers alone. In the Mahabharata, there is a mention of Pandu—not capable of producing children of his own—persuading his wife, Kunti, to get children fathered through other men so as to keep the lineage going. Such an arrangement is listed as one of the six methods for children being recognised as kin or heir by the Anushasana Parva of the Mahabharata. Kunti bearing Karna (by invoking Surya, the Sun God, even before her marriage to Pandu) and later Yudhishtra, Bhima and Arjuna through Dharma, Vayu and Indra respectively as surrogate fathers even while continuing to be held in great regard is evidence of the fact that surrogacy in those times was not just practiced but was also socially acceptable.
The Surrogacy (Regulation) Bill, 2019, while seeking to ban commercial surrogacy, lays down guidelines for legalised surrogacy for ‘altruistic’ reasons. Although the need for some form of regulation owing to unethical practices by some clinics has been felt, the Bill has come under criticism for various reasons, like lack of clarity, denying women the right over their own bodies, overlooking the difficulties in finding a surrogate mother from one’s immediate family (one of the conditions listed in the said Bill), being oblivious to existing medical conditions amongst Indian women and ignoring the need amongst parents for having a child they can call their own.
Dr Nayana Patel, known for handling Asia’s first surrogacy case way back in 2003, prefers to use the term ‘compensated surrogacy’ instead of ‘commercial surrogacy’. According to Dr Patel, one in every 4000 women in the world are ‘naturally and congenitally’ born without a uterus. The question that arises is what, if any, is the recourse (other than adoption, which is a different subject altogether) available to women with such medical issues who are unable to find a member of their immediate family to take on the role of a surrogate mother? A blanket ban on commercial surrogacy has also evoked criticism for the reason that such a ban would deprive women from poor socio-economic backgrounds from earning some money. It can of course be argued that surrogacy need not be a medium for financial empowerment. However, financial empowerment is incidental and nothing more than a compensation for the services rendered as a surrogate. This said, surrogacy should of course never become a tool for exploitation of indigent women, nor should it come to be viewed as a source of making money by exploitative clinics or avaricious women unaware of the consequences of subjecting their body to multiple surrogacies.
Dr Mani of the GIFT-Gyno IVF Centre in Kerala cites the example of three young women with imperfectly formed genitalia (therefore being incapable of delivering a baby) for whom surrogacy was the sole hope for having children they could call their own. Such instances are aplenty. The Surrogacy Bill, after having been passed by the Lok Sabha, was referred by the Rajya Sabha to a Select Committee. In a development which is expected to be largely welcomed by most intended parents, the Select Committee has recently submitted its recommendations including allowing a ‘willing woman’ to become a surrogate mother, doing away with the requirement of waiting for five years before conceiving and opting for surrogacy in view of medical conditions like absence of uterus, non-functional uterus, renal transplant, etc.
In a move to ensure the medical safety of surrogate mothers, the Committee has also recommended increasing the insurance cover for surrogate mothers from 16 to 36 months. It has also recommended that the Assisted Reproductive Technologies (Regulation) Bill, awaiting Cabinet approval, be taken up before the Surrogacy Bill since the former deals with many of the technical and scientific aspects relating to storage of embryo, etc., as contained in the Surrogacy Bill. The Ministry of Health is now expected to consider these recommendations directed essentially towards ‘responsible surrogacy’ before reintroducing the same in Parliament.It will be pertinent to bear in mind what Sigmund Freud had said, “It would be one of the greatest triumphs of humanity…if we could succeed in raising the responsible act of procreating children to the level of a deliberate and intentional activity.”
In a development expected to be largely welcomed by most intended parents, the Select Committee has recently submitted its recommendations including allowing a ‘willing woman’ to become a surrogate mother, doing away with the requirement of waiting for five years before conceiving and opting for surrogacy in view of medical conditions like absence of uterus, non-functional uterus, renal transplant, etc
Ashok Warrier
Former Ambassador of India to Democratic Republic of Congo Email: ashokwarrier27@gmail.com