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By India Ciánna Stevenson
Commercial surrogacy in India is a controversial topic of debate in bioethics. India’s attempts to regulate and control commercial surrogacy struggles to find a balance between two conflicting interests: preventing the exploitation of surrogates and protecting the rights of women to make their own reproductive choices. This balance is also challenged by the debate over commercial versus altruistic surrogacy.
Commercial surrogacy was first legalized in India in 2002. It was initially unregulated industry, which resulted in exploitation, poor living conditions, and unethical treatment of surrogates. India is currently the largest provider of commercial surrogacy services in the world, with procedure costs ranging from $20,000 to $45,000, compared to the typical range of $60,000 to $100,000 in the United States of America. The low cost of fertility clinics combined with the number of poor women that were willing to become surrogates played a large role in the upward direction of the commercial surrogacy industry in India.
In terms of exploitation, the power imbalance between the upper-class intended parents and lower-class surrogate mothers is a concern. The health risks, gender-based exploitation, and insufficient compensation are issues highlighted in arguments on exploitation. As a result of the exploitation and ethics of the commercial surrogacy industry in India, between 2008 and 2014 there were several attempts to pass legislation regulating surrogacy.
These efforts never materialized, however, more recently The Surrogacy Bill of 2019 was passed. This bill bans commercial surrogacy and permits only altruistic surrogacy for infertile Indian couples. In other words, this bill prevents potential surrogates from receiving monetary compensation for their services. To be eligible for altruistic surrogacy, potential couples need to be married for at least 5 years and provide proof via certificates of infertility. The bill also prevents LGBTQ+ families, single parents, unmarried couples, foreign citizens, and people outside the age groups of 23-50 for females and 26-55 for men from seeking surrogacy. Additionally, the bill suggests that only “close relatives” of the intended parents can be altruistic surrogates for them, and limits the surrogate women to one opportunity of surrogacy.
Critiques of the 2019 bill note that these restrictions strip women of their autonomy in making reproductive choices. It also reinforces the traditional ideas and societal values that suggest that a women’s work in the private sphere should have no economic value. The clause in this bill that only allows for close relatives to act as surrogates leaves room for instances of coercion of women by their families into providing reproductive labor. The bill is also controversial due to the lack of provisions that would ensure an altruistic surrogate is not exploited in similar ways to the current commercial surrogacy industry .
Both commercial and altruistic surrogacy have their own ethical challenges. The lack of payment in altruistic surrogacy could be exploitative and restrictive of reproductive autonomy. However, paying someone to carry a child could result in exploitation by coercion and commodification of reproductive labor. The altruistic model also suggests the expectation that a woman would go through the physical and emotional experiences of surrogacy free of cost and only out of compassion without the expectation of compensation. This is a paternalistic and patriarchal expectation that will also limit the number of women willing to go through surrogacy.
Sivakami Muthuswamy, the Chairperson of the Centre for Health and Social Sciences at Tata Institute of Social Sciences (TISS) in Mumbai, suggests that there is still a necessity to respect women’s agency through attempts to address exploitation. It is clear that these women’s choices to become surrogates are influenced by the coercive pressure of their low-income status. However, it is also important to recognize that these decisions were made by these women in an attempt to maximize their welfare. The responsibility of healthcare and policymakers in this situation is to ensure that these women have more choices and accurate information when making such decisions.
It is evident that the current system of commercial surrogacy in India is exploitative and in need of regulation, but the current regulatory proposals also present significant bioethical concerns. The surrogacy industry requires regulations that would consider a woman’s autonomy and right to choose, not a complete ban that strips those rights away from these women. Regulations that fail to consider these issues risk further marginalizing low-income women and restrict their choices.
References Sonak, E., & Bhatia, S. (2021, April 21). India’s new Surrogacy Regulation Bill falls short of protecting bodily autonomy and guaranteeing Reproductive Liberty. LSE Human Rights. Retrieved October 2, 2021, from https://blogs.lse.ac.uk/humanrights/2021/04/21/indias-new-surrogacy-regulation-bill-falls-short-of-protecting-bodily-autonomy-and-guaranteeing-reproductive-liberty/  Blazier, J., Janssens, R. Regulating the international surrogacy market: the ethics of commercial surrogacy in the Netherlands and India. Med Health Care and Philos 23, 621–630 (2020). https://doi.org/10.1007/s11019-020-09976-x
https://link.springer.com/article/10.1007/s11019-020-09976-x  Gupta, M., & Chaturvedi, S. (2020). The Indian ban on Commercial surrogacy.
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