The Surrogacy Bill is an assault on the idea of a progressive nation

India's new Surrogacy Bill is nothing less than an assault on the idea of a progressive nation

A cake with two candles appears in the Kumar household at least once a month. There’s no reason for it, call it an “unbirthday cake”, like at the Mad Hatter’s tea party. “My babies love it. It’s one of those exciting moments for them,” says Rakesh Kumar, a globetrotting marketing consultant with roots in Delhi and offices in Dubai and Singapore. Kumar has two children, both of them born through surrogacy. Surrogacy is a process supported by a legal agreement that involves a woman agreeing to be impregnated to carry someone else's baby to term (the egg may or may not be hers). 

When Kumar felt the desire to be a parent, he was turning 40. And as a single man wanting to be a father, surrogacy presented fewer legal obstacles than adoption. His son was born in 2017; his daughter came nine months later. “The decision to have a second child was more for my son than for myself,” says Kumar, who believes siblings can act as strong support mechanisms, and with good reason. His sister lends a helping hand as he raises his children. 

Kumar is now absorbed in a familiar parental struggle — doing the rounds of schools to secure admission for his older child. Still, he is one of the lucky ones, his little family created in the nick of time.

Earlier this August, the Surrogacy (Regulation) Bill, 2019, was passed in the Lok Sabha. It bans commercial surrogacy, allowing only “altruistic surrogacy”, which can be resorted to only by heterosexual Indian couples who have been married for five years and do not already have a child. The Bill altogether excludes LGBTQ couples, and prospective single parents.

“To truly understand the effects of the Bill, we must understand that one in 4,000 women is born without a uterus,” says Nayana Patel, a surrogacy and infertility expert based in Anand, Gujarat, a city at the heart of India’s booming surrogacy industry. Patel has helped deliver about 1,430 surrogate babies at Anand’s Akanksha Hospital and Research Institute. She says that in most cases, couples have already had a range of fertility treatments. “Surrogacy is always the last resort.” 

Previously one could enter into a legal arrangement and pay for a surrogate mother’s medical needs, besides giving her financial compensation. This was classified as commercial or paid surrogacy. The new Bill requires a surrogate mother to be a “close relative”, a married woman between the ages of 25 and 35, who has had at least one child of her own. Finding such a match in an age of shrinking family units, and then convincing the woman to be a surrogate, is to stack the odds heavily against success.

The greatest loss caused by this Bill, according to Gurugram-based advocate Radhika Thapar Bahl, isn’t to surrogate mothers or aspiring parents but to “society at large”. An expert in surrogacy law, Thapar Bahl was a part of the legal team that helped celebrity film director Karan Johar become a father to twins in 2017. Any arrangement with a surrogate mother, altruistic or commercial, is ideally drawn up with a legal contract. 

“Fertility is a very sensitive topic in India. Even our families are kept in the dark if there’s a problem,” says the advocate. Take the tragic case of Ranjeeta Lal, who died in 2014, while giving birth to a boy in Ranchi, Jharkhand. In this case of “altruistic surrogacy”, she had been forced to carry her sister-in-law’s baby despite being known to suffer from cardiac ailments. 

Nayana Patel, surrogacy and infertility expert, Gujarat

The question of why, and how, a woman would choose to be a surrogate and carry someone else’s baby had long lingered in Bengaluru-based writer Gita Aravamudan’s mind. The question led her to meet couples across India, their doctors and the women who had chosen surrogacy as a route to financial security. Two years of research finally culminated in her book Baby Makers in 2014.

Though the price varies, a surrogate mother made an average of Rs 5 lakh by “renting out” her womb. Stories abound of how this money helped her buy a better life, including a new home and better education for her own biological children.  

Now as the Bill bans commercial surrogacy altogether and places the burden of carrying someone else’s babies on young married women within one’s family, the questions that first prompted Aravamudan to write her book have risen anew all over again. "A woman has to undergo physical pain and actually put her life on hold to carry someone else's baby. Doing this for altruistic reasons is quite rare," she says. Then there’s the fact, as Thapar Bahl points out, “There could be a case where the woman changes her mind and wants to claim the child as her own — just think of the turmoil that will cause within the family.” 

India legalised commercial surrogacy in 2002. By 2012, India had become the world’s surrogacy capital. According to various estimates, India’s surrogacy industry generated between $500 million and $2.3 billion annually.

‘The decision to have a second child was more for my son than for myself’ --- Rakesh Kumar, Marketing consultant, New Delhi

The Bill comes against the backdrop of issues such as the exploitation of surrogate mothers and the uncertain fates of some newborns. In 2008, by the time baby Manji was born to a Japanese couple through a Gujarati surrogate, the couple had divorced. The legal “mother” didn’t want the child. Manji’s father wanted to take her, but he couldn't under Japanese law. It was only after the baby’s grandmother — her father's septuagenarian mother — came to India and claimed the baby that they could take Manji home. More such stories abound: It took a two-year legal battle for the Balaz twin boys, born in 2008, to get recognised as children of their parents in Germany. (Surrogacy, both commercial and altruistic, is illegal in Germany. The kids finally had to be adopted by their own parents.)

The hallway of Patel’s hospital in Anand is lined with pictures of happy parents from as far afield as Nigeria, Germany, Canada and the US. These stories came to an abrupt end in late 2015, when the Indian government banned foreigners seeking surrogate mothers here. Many of these couples had brought along with them frozen embryos, or created some at Indian fertility clinics, which were then to be planted in a surrogate mother's womb. But the ban also left in the lurch the fate of hundreds of such frozen embryos because there were no legal guidelines as to how they could be sent out of India. The legal process to get these out continues. “As a doctor once said, what if the next Sachin Tendulkar is sitting among those frozen embryos, waiting,” recalls Aravamudan.

Celebrities such as actors Shah Rukh Khan and Aamir Khan have made use of India’s erstwhile surrogacy regime to have children in addition to their biological ones. Now, since the Bill bans a couple that has a child from opting for surrogacy, this route will be restricted to those who can look for options elsewhere, with financial heft akin to the actors’. And India’s loss is a gain for countries that allow commercial surrogacy, like the US. “The demand for surrogacy will always be there,” says Patel. She fears the restrictions India seeks to impose will drive the industry underground. Thus, the ban will also, ironically, violate the rights of the very people it seeks to empower — surrogate mothers.  

Even in places where altruistic surrogacy is permitted, such as the UK, surrogate mothers are compensated for possible loss of income, as well as medical bills. But there’s no such provision in India. As Thapar Bahl observes, “Women will be forced to do this out of a sense of duty to their [extended] families.”  

Last year, through the Navtej Johar verdict, the Supreme Court decriminalised same-sex relationships by reading down Section 377 of the Indian Penal Code. In 2014, the NALSA judgment recognised the rights of transgender persons. But despite these two landmark decisions the legal regime at large is not an inclusive one, says Akshat Agarwal, Delhi-based research fellow at the Vidhi Centre for Legal Policy. The definition of a family, he says, continues to be a traditional and exclusion-based one. 

Agarwal is also the author of a report (Queering the Law: Making Indian laws LGBT+ Inclusive) that explores this in the context of how Constitution-guaranteed human rights have translated to policies on ground. With only heterosexual unions recognised in India, traditional notions of a family continue to be in play. “People might live together without getting married — those are families of choice — and current laws don't take these things into account,” says Agarwal. The government should have taken into account the Section 377 ruling before going forward with this Bill, he says, since it was to be the groundwork for broader applications. But the surrogacy Bill has clearly missed that memo. And been blind to so much more.