The whole idea of surrogacy, the concept of hiring a womb to carry your child has always been intriguing to me. India had established itself as the commercial hub of the surrogacy industry, until of course, the Indian government came along and banned it.
As a part of my elective on Women and Law in college, when we started to study the concept of surrogacy, I was confronted with the idea that there were differing thoughts, varied aspects, umpteen emotions, and nuanced legalities associated with surrogacy. For example, I found it extremely interesting that the Indian Government drew a distinction between what is ‘altruistic’ surrogacy (surrogacy that is prompted by a selfless manner without asking for remuneration), and ‘commercial’ surrogacy (surrogacy that pays the carrier of the baby). Apart from the general concern for exploited surrogate women, there were all kinds of ethical and cultural justifications used to ban the concept, and in order to understand what prompted this kind of reaction, I started reading extensively about the issue.
It was during this time that I came across Gita Aravamudan’s book, Baby Makers and I had just started reading it when I got the opportunity, through Eyra, to interview the author herself. An award winning author and a journalist, Gita Aravamudan has written for many big media houses and done extensive research on topics like foeticide, surrogacy and other women issues. Some of her books include Disappearing Daughters: The Tragedy of Female Foeticide, Unbound: Indian Women @Work and of course, Baby Makers. Here I share a few insightful excerpts on the topic.
Samarth: Good day to you! We are thankful that you agreed to talk to us. I have been reading your book Baby Makers for the past few days, and I am really fascinated by how it has been structured and presented. Considering you wrote the book in 2014, and the very next year court directives resulted in a legislation that banned commercial surrogacy, how progressive do you think the law is?
Gita: I think banning commercial surrogacy is a retrograde step as it will only push the issue underground. Altruistic surrogacy is actually more unfair to the surrogate. It is more exploitative to ask a woman to bear a child for another woman without compensating her for her time and effort. She has to put her professional life on hold for a couple of years and also bear all the physical and medical problems of pregnancy. Insisting on altruistic surrogacy could also result in women being coerced or blackmailed by their own families to bear a child for a relative. The law therefore was not on the right track. It should have focused on regulating the industry and not on instituting an arbitrary ban. The fertility industry in India was economically valued at over a billion dollars. The Act effectively managed to kill fertility tourism in the country and this has had an economic impact as well.
Samarth: Considering one of the major issues with surrogacy (altruistic or otherwise) is the fact that the parents of the child might have ill intentions for engaging with a surrogate, and while the Act also mentions that children born off surrogate mothers must not be used for commercial purposes (prostitution, child labour, etc.) do you think the Act is sufficient in regulating and more importantly, monitoring a child born via surrogacy?
Gita: In my opinion this is not really an issue. Fertility treatment is very expensive and complex and the outcome is not guaranteed. A surrogate is hired in the last stage if the woman is not able to carry the child in her own uterus. Children born through this process are most wanted and precious to the commissioning parents. Usually child traffickers pick up or kidnap abandoned or unwanted children. Not children born through surrogacy. Anyway it is good to have a legal check on this.
Samarth: In most cases, the legislations regulating a particular field are rarely successfully implemented. For instance, the regulation of child adoption by subsequent judicial precedents in the 90s haven’t really done much to solve the issue. Surrogate women were subjected to unethical treatment and poor living conditions and managed only to receive a small percentage of the money paid due to the presence of middlemen, don’t you think these warranted a direct ban illegalising these practices as opposed to a regulated continuance of commercial surrogacy?
Gita: Yes, there is exploitation of surrogates especially by middlemen and unauthorised clinics. But the answer is not a blanket ban. What is required is a more careful study of the issue and a proper comprehensive legislation which takes all the aspects into consideration. For example, surrogates should legally be provided with proper contracts and medical insurance. Many of the fertility clinics also provide good living facilities and ensure the surrogate gets adequate nutrition and medical treatment. All of this is paid for by the commissioning parents who have a stake in keeping the surrogate healthy and happy. In the beginning commercial surrogacy was dependent on oral contracts. In such a scenario, surrogates were often unpaid or underpaid or ill-treated. But, by the time the ban was imposed, enforceable written contracts were in place.
Samarth: The legislation mandates that in order to be able to engage a surrogate, the intending couple needs to have been married for at least five years. This consequentially seems to discriminate against unmarried couples, single individuals and homosexual couples from having a child born from surrogacy. What is your opinion on the matter?
Gita: This is totally wrong and discriminatory and denies a large section of people their fundamental right. At the basic level, the law is myopic in its view of who can be a parent in the world we live in today. The Bill clearly goes wrong in saying that only heterosexual couples, with proven infertility problems have a right to obtain a child through surrogacy, and this is discriminatory against all of the people that fall outside that category.
*All images used in this article are either Eyra’s own design or widely and freely available on the internet.*