Why Banning Surrogacy In India Will Hurt Women

By Nilanjana Bhowmick

This August, the Indian government approved a bill to ban commercial and international surrogacy. India, which has long been an important hub of transnational surrogacy, will now only allow altruistic surrogacy for married, heterosexual couples. The ban will kill a legitimate livelihood option for thousands of poor women.

Systemic poverty plagues women particularly in rural India, where female labor force participation has fallen significantly over the last decade. Aside from a lack of viable job opportunities, social factors also play a key role. Women are often discouraged from working outside of their homes, especially after marriage and childbirth.

The results are devastating: One study found that at least 17 women commit suicide in India every hour. Poverty is a major cause of these suicides, propelled by a lack of sustainable livelihood options.

It’s also one of the main drivers for the women who brave social taboo to become commercial surrogates each year. The $2.3 billion industry involves thousands of women employed across the country’s 2,000-plus fertility clinics. And despite its controversial nature, including the rampant exploitation of the surrogates — that often goes unreported — it has also helped pull thousands of women from destitution.

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One such example is Sharda Devi, who lives in severe poverty in a village called Khora, around 10 miles away from the Indian capital of New Delhi. She lives with her husband and two children, both under the age of 5.

A narrow bed occupies most of the family’s tiny room. Their few possessions are strewn around the room. There are some hand-me-down utensils — old and dented with use and age — and a few items of clothing, as well as a mattress worn with use, a small gas stove, and a colorful tin suitcase decorated with a complicated design of intertwined flowers and vines that also doubles as a sofa and a table.

Sharda’s husband is a day laborer. He earns around $100 a month, $30 of which goes to rent. The children don’t go to school.

In the past, thoughts of suicide often crowded her head, she says. “It broke my heart every time they [the children] went to bed hungry. I thought many times of killing myself, especially when they cried themselves to sleep at night.”

Desperate for a solution, the 23-year-old became a surrogate in January of last year. A neighbor and friend, who was a surrogate scout for a private clinic in Delhi, offered a distraught Sharda the opportunity to become a surrogate mother for an Australian couple.

“I was scared and I said no immediately,” she tells me. “Then I went home and looked at my children and the empty jars and utensils in the kitchen. I had nothing to lose. In fact, the money would go a long way in ensuring a better future for my children,” she adds, fidgeting with the colorful bangles on her wrists, her face partially covered with her shawl.

Another surrogate, 28-year-old Khairunnisa, tells me that she is able to send her children to school with the money she earned.

She lives in Kapasera, an industrial area in the outskirts of Gurgaon, a satellite town of the Indian capital. Most couples in Khairunnisa’s neighborhood work in the factories that dot the area. The average collective earnings of couples in the area is $250-$300 per month, less if the wife does not work outside the home. It’s an amount that ensures daily sustenance, but not much in savings. So it is unsurprising that most of Khairunnisa’s women neighbors have worked as a surrogate at least once.

“When my business failed and I had a huge loan on my shoulders and a mortgage on my house to pay off, I had only two options, either to sell my kidneys or surrogacy,” another surrogate, Rajni, says.

“Surrogacy was less risky and legal.”

But women like Sharda, Khairunissa, and Rajni will soon be robbed of this opportunity to provide for their families. The ban, which India says will mitigate the exploitation of the surrogates, will also push them in deeper despair and exploitation.

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Surrogates wait for lunch at a surrogate house in Gurgaon, India. (Courtesy: Vansh Surrogacy Center)
Surrogates wait for lunch at a surrogate house in Gurgaon, India. (Courtesy: Vansh Surrogacy Center)

According to a study by the Delhi-based Centre for Social Research (CSR), in the major surrogacy hubs of Gujarat, Delhi, and Mumbai, poverty drove almost 86% women to surrogacy. Indian surrogates undoubtedly make much less money compared to their western counterparts — in the United States and Russia, surrogates receive around 50% of the total amount spent by the couple, as opposed to around 30% in India. Nonetheless, the amount they typically make — $4,000–5,000 — is significant compared with other jobs usually available to these women.

While the ban will stop the exploitation by the middlemen who gobble up the rest of the 20% — which should rightfully go to the surrogates — it will also kill off an important industry for these women.

The ban is also likely to push the market underground, like it did in 2012, when India had banned surrogacy for single people or gay couples. Neighboring Nepal, which allowed surrogacy on the condition that the surrogate was not a Nepalese citizen, surfaced as an underground surrogacy hub. And when earlier this year a massive earthquake hit Nepal — which also subsequently banned commercial surrogacy in August — many Indian surrogates were stranded as Israel airlifted its own citizens and the babies, leaving the surrogates stranded in a quake-ravaged country.

Banning will aggravate the exploitation of surrogates, according to industry experts. “There should be a global agreement between countries to establish a framework for international surrogacy,” says Ranjana Kumari, director of CSR. “An outright ban will only push it underground and surrogates will be exploited more.”

The ban, which doesn’t propose alternative options for livelihood, is also likely to adversely affect India’s development goals, including those dedicated to alleviating hunger, poverty, and malnutrition among the country’s children. According to the Global Hunger Index malnutrition, this is one of India’s gravest developmental challenges; 38.7 million children, or one in three children under the age of 5, experience stunted growth.

Many Indian women living in poverty often have no other option than to work as domestic helpers, a time-intensive and low-paying job. The best of domestic helpers earn no more than $200 a month for working 12 hours a day.

Lack of childcare options also plague women who have to work outside their homes. There are a little over 1.3 million village nutrition centers or anganwadis (state-run day care centers for children up to the age of 6), which cover an estimated 102 million children. There are also just over 23,000 creches​ in the country for underprivileged mothers who work in ​the organized sector​, or jobs in registered companies with fixed hours and benefits as guaranteed by the country’s labor laws​.​ This is a drop in the ocean in a country of more than 1 billion people. The anganwadis, which were designed to take care of malnourishment among children below the age of 5, are also corruption-riddled and ineffective.

“I left my son at a local anganwadi when I went out to work,” says Monica Singh, who works as a maid in Delhi’s upper-scale areas. “He was never looked after and never grew well. He is 18 now but has the build of a 12-year-old.”

This also explains why surrogacy has emerged as such an attractive option for women with children of their own.

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The cycle of surrogacy is a conundrum for developing nations — including India — with no easy solution. Poverty and lack of opportunities often push women towards surrogacy. But it is also poverty that makes them susceptible to exploitation because they are not in a position to negotiate.

Addressing either side of the equation, without resolving the other part, cannot lead to a sustainable solution. India needs to regulate surrogacy, not ban it. It won’t be easy as the subject “raises many complex, contested, and ever-developing questions at the intersection of the law, science, ethics, and public policy,” states a recent study by Columbia Law School’s Sexuality and Gender Law clinic. But it also involves the livelihood of thousands of poor women.

“The international community [needs] to create a regulated market that protects the rights of everyone involved, particularly the surrogate mothers and the resultant children,” says Mark Henaghan, a professor of law at the New Zealand-based University of Otago.

What complicates the discourse around surrogacy, according to the Columbia Law School report, is that it is not based on an empirical agenda but a morality-driven, pejorative one. Which would also explain why the monikers that have come up to describe it, including ‘reproductive tourism,’ ‘rent-a-womb,’ and ‘reproductive trafficking,’ reek of paternalism. They do not take into account a woman’s right to her own body or her ability to make her own decisions.

The Columbia report also says that the prevailing opposition to surrogacy centers on “the integrity of the familial unit and the role of the parent, especially [mothers].” They also describe a common fear that surrogacy will subvert “the integrity, stability, and functionality of the ‘natural’ family, and is an ‘invalid’ form of family formation.”

These fraught and paternalistic beliefs definitely exist in India, which is why it is crucial to start viewing surrogacy as an infertility treatment; a vital means of helping thousands of women concieve. In India especially, where most things are repeatedly passed through the prism of morality, this paradigm shift is important.

More than ever before, India should be looking at creating sustainable livelihood options for its people, not killing them off. India ranked a dismal 97th out of 118 countries in this year’s Global Hunger Index. The figure is particularly daunting in light of the fact that the nation is set to become the world’s most populous in the coming decade.

The country must re-think the ban on surrogacy, at least until it has successfully addressed an important question: If not surrogacy, then what?

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Lead image: Pixabay

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