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New Surrogacy Policy: Great Leap Backwards

Nishtha Lamba is a PhD student in Psychology at the Centre for Family Research, University of Cambridge
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India’s new surrogacy policy is a failure in all aspects of an understandably challenging social phenomenon

India’s new Surrogacy Bill bans commercial surrogacy. Here’s what it allows: ‘altruistic surrogacy’ to Indian infertile couples who have been married for a minimum of five years. Neither intending parent can have had a child, even from a previous marriage. The surrogate mother can be paid or be reimbursed for basic expenses, should be a close family relative and can become a surrogate only once. Here’s what it doesn’t allow: single parents, same sex parents, live-in couples, foreigners or overseas Indian citizens seeking surrogacy in India. From now on, individual cases will be overseen by a surrogacy board at both the Central and state levels. The new law will be made effective in every state of the Union, except in Jammu & Kashmir.

There is no global consensus on what makes an ideal surrogacy arrangement. Its regulation and practice vary across the globe. By only allowing such a restrictive form of altruistic surrogacy in India, it is likely that many infertile couples will no longer be able to have a child through it. Furthermore, the practice may cease to legally exist. In this article, we will draw from field research findings to discuss the ethical, social and psychological implications of this unfair policy decision.

The proposed surrogacy law is yet another demonstration of how policy decisions—especially those governing women’s bodies—are far removed from what decades of research suggests. It is disturbing that the Government has turned a blind eye to the realities of economic difficulties in society, justifying uninformed policy decisions by hiding behind the garb of ‘Indian ethos’. India’s Minister of External Affairs Sushma Swaraj claims that the new policy will prevent exploitation of women (especially from rural and tribal areas) and takes into account the value system of Indian society. The concept of exploitation is used loosely in the law-makers’ narrative; it tends to ignore the circumstances that surrogates face. These women, mired in poverty, often view surrogacy as a relief from their difficult lives.

In addition, experts in the field have suggested that banning surrogacy contracts restricts the surrogate’s interpretation of her own pregnancy. It forces her to interpret it from a narrow cultural perspective, defined by the image of an ideal, sacrificial mother (woman). Even in a commercial model, surrogates usually report having both extrinsic drivers (example: financial) and intrinsic motivations (such as ‘I want to help a childless couple’ or ‘I enjoy being pregnant’). Moral theorists suggest that compensation for surrogacy decreases ethical obligations while leaving room for a surrogate to feel charitable. However, policy makers force the motivations of becoming a surrogate into a simplistic binary frame, whereby it is only done either for money or as an act of kindness.

Other than expecting a surrogate to join the arrangement for free, one of the main issues with the current Bill is allowing only close relatives to do so. In a country like India, with high power differentials, rich infertile couples could exploit voiceless women in their extended families. Moreover, while some level of contact is usually appreciated between the intending parents and the surrogate, too much proximity in the context of family (especially a joint one) may lead to insecurities in previously well-defined relationships.

Most importantly, the psychological health of a surrogate has not been given due consideration in the new law. Firstly, research suggests that ‘payment’ not only acts as an incentive, it also aids in creating a psychological detachment of the surrogate from the growing foetus. Second, failed pregnancy attempts, miscarriages and decisions of aborting multiple foetuses might lead to blame and guilt within a family where surrogates are related. This scenario could be worse in a collectivistic society as research suggests that these cultures are more prone to shame and guilt. Third, relinquishing a child with similar genes and shared ancestry could prove to be more complicated than in cases where the surrogates are unrelated. So now, in addition to not having a financial incentive, this new model of altruistic surrogacy could increase the avenues of emotional exploitation for the surrogate.

Previous research in the field of surrogacy has repeatedly shown that a large majority of these, surrogates in India (and around the world) have not regretted surrogacy and have successfully relinquished a newborn. Mostly, these women are not forced into surrogacy and are aware of the financial aspects of the contract, making it an informed, empowered choice.

Based on collective normative beliefs of motherhood and pregnancy, the law-makers assume that the psychological well-being of the surrogate would deteriorate after giving up the child. However, in a longitudinal study conducted with 50 surrogates in Mumbai by us at the Centre for Family Research, Cambridge, we observed that despite having spent nine months away from family in a surrogacy hostel and relinquishing a child, their psychological well-being did not worsen from the time of pregnancy. Levels of anxiety, stress and depression decreased for surrogates from the time of pregnancy to post-delivery. All the surrogates were primarily motivated by financial reasons; surrogates cited buying or building a house, or sending children to a private school as their most common motivations. For example, one of the surrogates said, “I will use that money to make a house. I will get both of my kids admitted in a good school. This is the reason of doing this.” With approximately half of the surrogates being separated, divorced or windowed, being a surrogate enabled them to provide a better life for their children.

Aligned with most research in the field, these surrogates referred to surrogacy as a noble way of earning money. They often referred to prostitution and organ donation as being the only other options to earn similar amounts of money. In terms of surrogacy arrangements, even though the Western media talks about surrogacy hostels dismissively, the majority of surrogates enjoyed living in such a hostel and developed strong friendships with one another. For example, one of the surrogates said, “It was easy living in the hostel. At first I felt strange, but then the other ladies said, ‘Don’t worry, we will take care of you.’ I felt happy and good being there.” Within India’s cultural context, it was interesting to see how these surrogates from different classes, castes and religions lived and shared sisterhood under one roof for nine months.

Interviewed after delivery, none of the surrogates expressed any regret, anger or guilt of either becoming a surrogate or giving up the baby. When asked about the child during pregnancy, none of them expressed a desire to keep the child. One said, “I never think so much about the baby because I know that this baby is not mine and I have to give it away.” Another said, “See, the baby is not mine and it has not been formed due to me and my husband, but still I wish to see the baby once.” Notably, they did not feel coerced into surrogacy. Many of them expressed a desire to become a surrogate again.

Of course, the world of commercial surrogacy in India has its own issues; these problems won’t go away because of the altruistic model. For example, in our study, even though the surrogates expressed a strong desire to see the child once, none of them wanted to be involved in the child’s life. So while the wish of seeing the child was not given prevalence before the Bill, now because the surrogate is a close family relative, she might feel forced to be involved in the child’s life. She still does not get any say in key aspects of the surrogacy arrangement. The Bill falls short in safeguarding the rights and interests of the surrogate as it fails to address issues that have been found to be important for surrogates, such as: the nature of delivery (normal delivery or Caesarean), handover of the newborn, guidelines on breastfeeding or post-natal care are not discussed with the surrogate beforehand. The surrogate is not counselled on these matters in any clinic in the country. So the new law, despite being framed under the pretence of the surrogate’s interests, still fails to recognise or address any of these critical issues.

This law will further encourage the stigma surrounding surrogacy in our ‘modern’ society. The policy has framed it as a closed family affair, implying that secrecy over it is the best option. According to literature on secrecy, however, familial relationships are negatively affected by concealment of facts, making people feel isolated. In this regard, our study found that the act of hiding surrogacy from the wider family and larger community to be predictive of higher levels of depression among surrogates. They choose to stay invisible or use lies to hide their pregnancy from the wider community. For example, one said, “Yes, neighbours ask me about it and I repeat the same, that I have a disease.”

Furthermore, lack of support during pregnancy was also found to be predictive of lower psychological well-being. Recommending secrecy, even if inadvertently, could turn out to be a causal element, contributing to poorer outcomes for surrogates. Our research also found satisfaction with payment as one of the main predictors of lower stress among surrogates post-delivery. However, according to the new policy, while a fertility clinic will still be paid for its services, a surrogate will not be paid for hers. Under the rubric of motherhood, her services will now be expected to be an ‘ultimate gift’ and an ‘act of kindness’.

A carefully regulated model of commercial surrogacy would have been a preferable solution. However, a well-constructed altruistic model could also have had its own benefits. In comparison with altruistic models of surrogacy in other countries which assign paramount value to the surrogate’s rights and interests, the Indian model appears a regressive step. In the UK, the surrogate chooses the intending parent(s) she wants to help through an agency, coupled with relationship development between the intending parent(s) and the surrogate. She does not have to be a close family relative. Surrogates can be given reasonable expenses and payment is not forbidden, though it needs to be approve by a court of law. The surrogate is legally responsible for the child throughout pregnancy and immediately after birth until a pre-natal order is issued to the intending parents, although there have been calls to transfer legal parenthood from surrogate to intending parents at birth. It is an altruistic model that centres around the well-being of the surrogate.

The Government’s recent move of easing the adoption process in India and nearly ending the practice of surrogacy suggests a pro-adoption policy. Encouraging adoption is undoubtedly a noble idea. However, the state cannot realistically monitor one’s personal desire to have a genetic child. It is an unrealistic expectation at a societal and a familial level. Moreover, there is an unexplained discrepancy whereby adoption in India is allowed to foreigners and overseas Indian citizens, but surrogacy is not. In addition, it is unfortunate that the new Assisted Reproductive Technique Bill has sensationalised surrogacy and not discussed other core issues related to egg, sperm or embryo donation. Note that in recent times, more deaths have been reported due to medical negligence in egg donation.

There are many other significant gaps in the Bill. It only forces us to ask more questions: how does one calculate the basic medical expenses in altruistic surrogacy? How would an official authority track ‘gifts’ being exchanged between parties involved in the name of ‘compensation’? How many embryos can be transferred at once? Who decides on the abortion of foetuses in cases of multiple pregnancies? What about psychological counselling for all parties involved in the surrogacy arrangement?

In addition to ethical, social and psychological perspectives, this law is also a regressive step from an economic standpoint. It is unfortunate that the available infrastructure for surrogacy will be turned redundant by it. Overall, the new Bill needed a healthy dose of realism in the Indian context, and a blanket ban on commercial surrogacy could move the business underground, making it more unsafe for surrogates than ever before. Banning homosexual couples from accessing surrogacy in India had led to pregnant surrogates hired by them being moved to Nepal by fertility clinics in India for delivery and handover of the baby. Also, since human tissues (example: frozen embryos) cannot be moved across the Indian border, recent news revealed that Indian surrogates are now being sent to Cambodia (a new destination for cheap international surrogacy) after conception for completion of the pregnancy. And within India, there is a possibility that the business might move to J&K, where the new law would not be applicable.

It seems that the new policy on surrogacy in India is devoid both of financial incentives and dignity of reproductive labour, further disempowering and exploiting surrogates. The new surrogacy arrangements should be closely monitored as the real impact of the new policy needs to be assessed. It is important to thoroughly evaluate the consequences of the new measures and not let the practice become invisible and still be exploitative.

Globally, the concept of surrogacy, since it challenges the normative understanding of pregnancy and motherhood, remains complicated and taboo. But India has taken a unique backward step: this new policy is a failure in all aspects of this understandably challenging social phenomenon.