Regulation of Surrogacy in India: Whenceforth Now?
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Editorial BMJ Glob Health: first published as 10.1136/bmjgh-2018-000986 on 8 October 2018. Downloaded from Regulation of surrogacy in India: whenceforth now? Bronwyn Parry, Rakhi Ghoshal To cite: Parry B, Ghoshal R. BACKGROUND ‘prohibit the potential exploitation of surro- Regulation of surrogacy Commercial gestational surrogacy (CGS) is gate mothers.’7 The problem, it would seem, in India: whenceforth was solved … or is it? now?BMJ Glob Health unique among assisted reproductive services 2018;3:e000986. doi:10.1136/ in its ability to attract disapprobation. Allied Allowing legislation to gestate out of an bmjgh-2018-000986 practices such as in vitro fertilisation (IVF), environment of moral panic driven by prom- oocyte and sperm donation also enable infer- inent cases, irrespective of their typicality Handling editor Seye Abimbola tile couples to reproduce through assistive or evidential basis, can result in changes technological and third-party interventions, that simply substitute one set of wrongs for Received 31 May 2018 Revised 23 July 2018 yet they rarely attract sustained condemna- another. Such, we argue, has been the case Accepted 27 July 2018 tion. Censure arises from concerns that CGS with this new regulation. In attempting to involves the routine exploitation of vulner- shut down what it perceives to be a degrading able, impoverished women of colour who are industry, the Bill dictates that only Indian commissioned by wealthy white Westerners women aged 25–35 years, with at least one to perform a labour they would otherwise existing child, and who are closely related to decline. Rationales for undertaking CGS the intending couple are eligible to perform are, however, multiple and complex.1 CGS is, a surrogacy altruistically on their behalf. Any moreover, increasingly used by citizens of the payment, reward or monetary incentive to the global south (often relatively impoverished surrogate, her dependents or representatives ones) to address forms of structural infertility is expressly forbidden; she may only receive brought about by diseases such as genital medical expenses and insurance costs. Crim- tuberculosis.2 This intra-South demand, inal penalties of ‘not less than three years and combined with the displacement of the fines which may extend to five lakh rupees 8 http://gh.bmj.com/ fertility industry to emergent southern econ- [half a million USD]’ for the doctor/clinic omies such as Thailand, Mexico and India, indicate the severity of the punishments for should serve to make the regulation of CGS contravention. a key concern for global reproductive health. The legalisation of CGS in India in 20023 led ETHICAL INCONSISTENCIES AND to increased demand from individuals, such CONTRADICTIONS on September 29, 2021 by guest. Protected copyright. as women with serious reproductive abnor- The basic presumption of the Bill, that malities and small numbers of male homo- banning commercial surrogacy will neces- sexual couples who are unable to biologically sarily erase its exploitative potential is, we gestate their own children, and the market argue, highly problematic as it dismisses the grew consequentially. However, in 2015 the possibility that altruistic arrangements can be Indian state, stung by critiques that CGS equally as exploitative as commercial ones, was inherently imperialist and oppressive, although in different ways. The legal require- elected to ban all foreigners from accessing ments for becoming an altruistic surrogate these services.4 Responding to further adverse are now so prescriptive that they prove highly © Author(s) (or their publicity surrounding high-profile interna- discriminatory for couples who would fail employer(s)) 2018. Re-use to access such a ‘close relative’.i As a Delhi- permitted under CC BY. tional cases of abandonment of surrogate chil- 5 Published by BMJ. dren, a Surrogacy (Regulation) Bill was abruptly based Assisted Reproductive Technologies introduced in August 2016 that banned CGS (ART) specialist, offering surrogacy services Global Health and Social ii Medicine, King’s College altogether.6 Believing the key problem to lie explained: ‘They [ie, the Bill] are saying you London, London, UK in the ‘commercial’ element of the process, Correspondence to the Indian state determined to make surro- i A further shortcoming of the Bill is that it offers no defi- Professor Bronwyn Parry; gacy permissible only if performed altru- nition of who constitutes ‘a close relative’. bronwyn. parry@ kcl. ac. uk istically. This, according to the Bill, would ii Our Wellcome Trust funded qualitative research was Parry B, Ghoshal R. BMJ Glob Health 2018;3:e000986. doi:10.1136/bmjgh-2018-000986 1 BMJ Global Health BMJ Glob Health: first published as 10.1136/bmjgh-2018-000986 on 8 October 2018. Downloaded from have to get a close relative; such as a sister. Now, say I do compelled to do so by ‘her husband, the intending couple not have any sister. I have nobody [who fits the require- or any other relative’11 fails to account for the woman’s ments]; then I can’t have a child.’ As she went on to own agency. As the aforementioned doctor notes: ‘Have argue: ‘If you feel that surrogacy is going to damage a you gone and checked what they [the poor women who woman, why are you then allowing the poor relative [to are engaged in small-scale informal sector industries, become a surrogate]?’ and who often volunteer as commercial surrogates] are We agree that the State’s position here is ethically incon- actually doing? Working in a windowless room, go and sistent. Reports occasionally emerge of instances in which see how many hours you will survive there where they are a sister or even a mother becomes a surrogate (for her working daily. The factories are windowless, and they are own grandchild), but these are relatively rare. As Muker- making all kinds of stuff … their children are loitering jee’s9 research reveals, very few women in India would around for 10, 12, 14 hours. You think she would not voluntarily undertake surrogacy for someone within the prefer surrogacy to that?’ The presumptions made by the family. It is imaginable therefore that such relatives, if Bill are certainly highly patriarchal, as they imply that found, could come under intense familial pressure to adult, mentally stable, although economically disadvan- take up the role – especially if, for example, they are the taged women lack the autonomy and decision-making daughters-in-law. We argue, therefore, that it is a gross capacity to voluntarily elect to undertake CGS as a viable error of judgement to assume that exploitation is essen- alternative form of paid employment. tially an economic problem, or that familial relations are devoid of exploitative or coercive potentials. Prior regulations (viz, the ART (Regulation) Bill, 2010) CONCLUSION advocated surrogate anonymity (her name does not In August 2017, the 102nd Indian Parliamentary appear on the birth certificate) and discouraged breast Standing Committee12 critically engaged with the Bill feeding to reduce postpartum bonding and promote and the Committee’s critique aligns with the assessments separation after birth.10 The Surrogacy (Regulation) Bill, we offer here. Our joint analyses suggest that this legisla- 2016, however, inexplicably abandons these arguments, tion still requires significant further refinement. The role allowing the commissioning parents to bring up a child of legislation must be to assure high standards of care, born out of surrogacy in close proximity to the surrogate. consent and compensation for all involved in the delivery We can only speculate on what toll this might take on of reproductive services in India. This includes prospec- the emotional health of the surrogate, the social mother tive surrogates and commissioning couples suffering and the child, but it seems reasonable to suggest that the ignominy of infertility that arises from intractable considerable psychological maladjustment could result, reproductive disease. Some conditions such as uterine particularly if the true relationship between the surrogate abnormality or absence, for which surrogacy is the only and child is deliberately obscured or disavowed. Should remedy, are immediately evident on medical examina- a close relative agree (or be coerced) to become the tion. The Bill’s recommended minimum 5-year waiting http://gh.bmj.com/ surrogate but later change her mind, it would presum- period before accessing surrogacy thus has no scientific ably also prove extremely difficult for her to terminate basis and is both arbitrary and discriminatory. the pregnancy (for whatever reason, and especially when Indian (or other) citizens who are unable to bear not medically indicated) without permanently damaging biologically related children should have the same right to familial relations. These dynamics, we suggest, are access commercial surrogacy as another form of assisted arguably more socially and psychologically exploitative reproductive service, as do those whose infertility can be on September 29, 2021 by guest. Protected copyright. of vulnerable participants than those found in trans- addressed via commercial IVF or compensated gamete parent contractual commercial relationships between provision. Surrogacy is but one of a suite of assisted consenting parties. reproductive services all of which require a consistent Few States legislate against payment for expended legislative approach. Economic disadvantage can compel labour, but in this case the government is advocating poor women to engage