Surrogacy has been 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 is varied across countries, ranging broadly from unregulated (Chile, Iran, Colombia, Japan, Sweden, Nigeria etc.) to altruistically and commercially legal (Russia, Kazakhstan etc.) to altruistically legal but commercially illegal (Belgium, Denmark, the 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 being completely prohibited.
The concept of surrogacy is not new to India. Indian mythology is replete with instances of surrogate mothers. Rohini, the first wife of Vasudeva, was the surrogate mother for 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 Mahabharata, there is mention about 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 proclaimed and recognised as kin or heir by the Anushasana Parva of the Mahabharata. Kunti bore Karna (although with some subterfuge on her part) Yudhishtra, Bhima and Arjuna, through Surya, Dharma, Vayu and Indra respectively as surrogate fathers and yet continued to be held in great respect and regard.
The Surrogacy (Regulation) Bill, 2019 while seeking to ban commercial surrogacy, lays down guidelines for legalised surrogacy for Indian couples for ‘altruistic’ reasons. Although the need for some form of regulation of surrogacy has been felt, the said bill has come in for criticism for lack of clarity, for denying women the right over their own bodies, for overlooking the difficulties in finding a surrogate mother from one’s immediate family, for being oblivious to existing medical conditions amongst Indian women, and for ignoring the need amongst intended 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 4,000 women in the world are ‘naturally and congenitally’ born without a uterus. One of the arguments against the blanket banning of commercial surrogacy is that women from poor socio-economic backgrounds, through the money received for being a surrogate are able to feel empowered, send their children to schools and colleges, build a house or generally help alleviate the financial burden of their husbands.
A blanket ban on ‘commercial surrogacy’ is perhaps not an answer to regulate incidences of misuse or abuse of the practice, some doctors in the field feel.
Dr Mani of the Gift-Gyno IVF Centre in Kerala cites the example of three young women with imperfectly formed genitalia (and therefore being incapable of delivering a baby) for whom surrogacy was the sole hope in having their own children. He gives the example of another young lady for whom surrogacy was the only available medium to have a baby of her own because of having undergone renal transplant and been advised against pregnancy.
Since it is not often possible to find a surrogate mother amongst close relatives, a blanket ban on commercial surrogacy, according to Dr Mani, will prevent a woman from being able to have a child of her own apart from depriving another needy and healthy woman to earn some money and put her house back in order.
It is the hope of several doctors in the field that the Surrogacy (Regulation) Bill, 2019 referred by the Rajya Sabha to a select committee, would factor some of the compelling constraints and considerations before it becomes an act.
Ashok Warrier is a retired IFS official. The opinions expressed in this article are those of the author's and do not purport to reflect the opinions or views of THE WEEK