Ban on commercial surrogacy in India is futile without addressing larger inequalities

As the Indian government’s decision to ban commercial surrogacy in an attempt to curb “exploitation of women” faces severe criticism, this series delves into on-the-ground realities.
Ban on commercial surrogacy in India is futile without addressing larger inequalities
Ban on commercial surrogacy in India is futile without addressing larger inequalities
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It’s lunch time: almost an hour past noon and the winter sun of December is too harsh. But it isn’t evident in the basement of the Akanksha Hospital in Anand district, some 80 kilometres from Gujarat’s capital city Ahmedabad. The circular tables along the long canteen hall are occupied by groups of women who have just finished their meal. The ones who are visibly tired retire for an afternoon nap while a bunch of them regroup for their daily afternoon activity.

Huddled around a table at the centre of the room, the conversation in Gujarati and Hindi rapidly shifts between topics— from morning prayer to their children; from lunch menu to the craft session that is about to begin; from health to womanhood and dealing with pregnancies— these women who until few weeks back didn’t know each other, share with one another some of their most personal and intimate stories.

Among a wide range of differences, a commonality running through their lives is debt. And to overcome it, these women have found a common solution too: surrogacy. 

Who’s a surrogate?

Thirty-five-year old Daksha* is among the nearly 100 surrogate mothers who are currently residing at the hospital's surrogacy hostel. Six years ago, when Daksha became a surrogate for the first time, she had a debt of about Rs 65,000 and her neighbour suggested surrogacy as an option. With the fee that was paid to her, she repaid loans, constructed a house and set up a roadside food stall along with her husband. The income from the food stall was sufficient to run the family and to take care of her two children, until Daksha’s husband met with an accident three years ago which pushed their lives back by a decade. After considering different options, she decided to take up surrogacy again and is now in her sixth month of pregnancy.

The crafts workshop at the hospital

Women interviewed said they opted to be surrogates to support the financial needs of their family like better healthcare, education of children and repayment of debts. Many also blamed alcoholism of husbands as a primary reason to be surrogates as the men either don’t provide financial support or they have separated.

Daksha claims that the Rs 4 lakh promised to her would go entirely towards treating her husband who remains immobile for a couple of years.

“Doctors said the accident has affected his nervous system which would eventually trouble his head and needs to be operated on. If I’m able to save some money after his treatment, I’ll restart the food stall that is shut for months now,” says Daksha, who has completed her school education.

Anand district, known for its largest co-operative dairy industry Amul, gained international attention as a ‘surrogacy capital’ in the mid-2000s, courtesy Dr Nayana Patel, the founder of the Akanksha Hospital, who is often praised and criticised in equal measure for ‘commercialising pregnancy’.

Amrita Pande terms these surrogacy hostels as “gendered spaces” in her book Wombs in Labour: Transnational Commercial Surrogacy in India. She states that these spaces which are often imagined to be the “most repressive form of surveillance, become an avenue for collective resistance.”

“Some women use the hostel space to share information and grievances. Others come up with acts of collective action and even strategies for future employment,” writes Amrita.

Dr Nayana also says that her hospital is uplifting the lives of several impoverished women and the life skill training programmes help rebuild lives.

“When they have nothing, they come here; the ecosystem that we’ve built is crucial. It helps someone build a house, send children to schools and improve their overall wellbeing, and that is definitely a life changing experience,” says Dr Nayana.

In the name of surrogate

Credit: Dishina Uttamchandani

The Surrogacy (Regulation) Bill, 2019 aims to curb exploitation of surrogate mothers by banning commercial surrogacy and allowing only “close relatives” to be surrogate. The Bill states, “…necessary to enact legislation to regulate surrogacy services in the country, to prohibit the potential exploitation of surrogate mothers and to protect the rights of children born through surrogacy.” 

The deliberations over the Bill have largely focused on two facts: surrogacy has improved lives by overcoming financial constraints versus surrogates who are the vulnerable lot in the assisted reproductive chain are subjected to exploitation.

However, PM Arathi of the Council for Social Development, an advocacy institute in New Delhi, says that without addressing the ground reality on employment and wages in India, banning commercial surrogacy is neither a solution nor an answer.

In her recent research paper ‘Silent Voices: A Critical Analysis of Surrogacy’s Legal Journey in India’, she adds, “When the state withdraws from its responsibility of providing universalisation of primary, secondary and higher secondary schooling, better housing for all, land redistribution and universalisation of healthcare, the banning of surrogacy is ultimately counterproductive.”

Denying allegations of exploitation, Dr Nayana says hospitals presently arrange for legal contracts between couples and surrogates. She cautions that exploitation would arise if the Bill is passed and adds, “A ban doesn’t mean that there isn’t going to be any demand. The black market will become rampant where nobody would have control and none will have a place to complain.”

Mumbai-based senior gynecologist Dr Nikhil Datar argues, “Any new advancement in science and in particular, medicine creates myriads of opportunities, but it comes attached with abuses too.” However, he calls for regulation as opposed to a blanket ban, noting, “It is definitely important for government agencies to step in to propose regulations that strike a social balance and address biological, ethical and legal issues. However, a regulation is different from curbing a medical advancement.”

Talking about the reservations over the Bill, he adds, “Allowing only close relatives will ensure surrogacy itself becomes impossible. And, this leads to the crux of the problem— denying a woman her reproductive rights.”

Women at the centre in Akanksha Hospital 

The road to legislative intervention

In the last 15 years, several deliberations were made to regulate and supervise assisted reproductive technologies (ART) which deal with medical procedures for infertility, such as in vitro fertilisation (IVF), artificial insemination, etc. Apart from the initial set of guidelines in 2005, the Indian Council of Medical Research (ICMR) also formulated ART (Regulation) Bill, in 2008 that was redrafted twice in 2010 and 2014, only to remain in cold storage. 

While the ART Bill covers a larger gamut of medical procedures under the assisted reproduction, the current Bill only focuses on surrogacy.

After getting passed in the Lower House, when the Surrogacy (Regulation) Bill, 2019 was introduced in the Rajya Sabha during the winter session, it faced opposition from various members across parties and moved to a Select Committee for review. The Committee while submitting its report earlier in February, recommended the removal of the ‘close relative’ clause and suggested any ‘willing woman’ to be surrogate. 

Some other recommendations the Committee made include the tabling of the ART Bill before the Surrogacy Bill, inclusion of single women as commissioning parents and waiving off the five-year wait period after marriage to opt for surrogacy, if it is certified that the woman can’t conceive.

Terming the ‘close relative’ clause as one of the most contentious issues, the Committee said the Bill ignores the ground reality of most Indian families where women have little decision-making authority. It also added that limiting the practice of surrogacy to close relatives is not only non-pragmatic and unworkable but also has no connection with the objective to stop exploitation of surrogates envisaged in the proposed legislation. 

Agreeing that surrogacy forms a very miniscule portion of assisted reproduction and the ban would not make any impact to curb exploitation, Mumbai-based ART expert Parikshit Tank says, “The overall proportion of couples who’d need surrogacy is limited to less than 2%.”

While major amendments suggested to the Surrogacy (Regulation) Bill, 2016 by a Standing Committee were ignored earlier, it is yet to be seen if the latest recommendations would be implemented.

The cost of assisted reproduction

In the Standing Committee report (2017), Mrinal Satish, Associate Professor of Law and Executive Director at the Centre for Constitutional Law, Policy and Governance of the National Law University, observed, “…the contract entered into with the surrogate followed the ‘free market principle’ which meant that each contract was negotiated separately and the contract was devoid of the postnatal care, life insurance coverage and informed consent provision thereby entailing huge bargaining power disparity between the intending parents/clinics and the surrogate mothers.”  

A woman at the crafts workshop

The Indian fertility healthcare, in its current form, is a strained cosmos of constantly roving patients from different regions of the country— sometimes from other countries too and,  groups of young women—egg donors and surrogates, usually accompanied by agents. Invariably the waiting room at fertility centres across various cities in India is an intersection between the haves and have nots.

The exorbitant costs involved in Assisted Reproductive Technology, lack of government intervention and monopolization by private healthcare providers has ensured that the assisted reproductive healthcare has grown into a multibillion-dollar profit generating industry often entangled with irregularities and disparities. 

In India, the proportion of ART’s growth— valued at $478.2 million in 2018 by Allied Market Research and estimated to reach $1.45 billion by 2026, makes it crucial that any law that addresses assisted reproduction ought to be more inclusive, balanced as well as non-exploitative.

The ART treatments can range anywhere from Rs 1.5 to Rs 20 lakhs depending on the procedure. Since, the success rate is minimal and as patients end up with multiple cycles of treatment, the cost shoots up.

Parikshit admits that if ART is available in public healthcare, it would’ve served a higher number of people. 


Back at the surrogate hostel in Anand, activity session for the afternoon has begun. A 28-year-old surrogate shows a navy blue coloured thread earring that she made during the previous jewellery making session. 

However, Daksha is not keen on the session. She wants to continue the discussion on surrogacy and in the process with much ease she succinctly simplifies the most complex debate around commercial surrogacy ban, the demand-supply chain and the necessity to address larger inequalities. 

She raises a question only to give the answer herself: “Will I agree to be my sister’s surrogate without any compensation? Definitely not.” 

“Even if we both agree as per all the laws (of altruistic surrogacy), who will pay for our treatment?” she asks. And, with precise articulation, she adds, “This (cycle) goes on only if the parties involved are rich and poor: those who need money and those who can afford. There needs to be an incentive for both parties and it’d break if either both are rich or poor.”

*Names changed to protect identity. 

This reportage was supported by the Thakur Foundation. Dharani Thangavelu, an independent journalist from Tamil Nadu, is a recipient of the grant for investigative reporting in public health- 2019, awarded by the foundation.

Photos by Dharani Thangavelu

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