The prohibition on commercial surrogacy in India, as exemplified by the recent introduction of The Surrogacy (Regulation) Bill, 2016, reflects a global trend away from allowing commercial transactions in reproduction. While a handful of countries, such as Russia, Georgia, Ukraine, and certain US states, permit commercial surrogacy, they represent a minority viewpoint. Most developed nations opt out of this practice, concerned about the potential ethical and social ramifications inherent in treating reproduction as a commodity.
Despite the potential financial allure for marginalized women, many states remain steadfast in their opposition to commercial surrogacy. India appears poised to join this list, with the proposed legislation aiming to completely ban commercial surrogacy while allowing for altruistic arrangements under strict regulations. To qualify for such altruistic surrogacy, heterosexual couples must demonstrate medical infertility and enlist a married relative who meets specific criteria.
This stringent approach leaves little room for individuals outside the prescribed norms—single persons, homosexuals, live-in couples, foreigners, divorcees, Persons of Indian Origin (PIO), and Overseas Citizen of India (OCI) cardholders. The government’s motivation behind this blanket ban centers on curbing exploitation, both by intermediaries and within families, which has been well-documented and damaging to both surrogate mothers and children.
Despite the noble intentions, critics argue that the proposed legislation overlooks other assisted reproductive technologies and adopts an exclusionary stance towards individuals based on sexual orientation or marital status. Moreover, as demand for surrogacy persists, these restrictions risk driving the practice underground, negating the protections intended for surrogates and offspring.
India’s burgeoning assisted reproductive technology sector, valued at approximately $2 billion, has operated thus far under loosely enforced guidelines. The government’s push for stricter regulation reflects a desire to address exploitation and ensure ethical practices. However, the focus solely on surrogacy may overlook broader issues within the industry, potentially exacerbating rather than mitigating risks to vulnerable parties.
In conclusion, while the intent behind India’s proposed ban on commercial surrogacy is laudable—to safeguard the well-being of surrogate mothers and children—the approach appears overly restrictive and may inadvertently fuel a clandestine surrogacy market. Balancing the regulation of assisted reproductive technologies with the protection of individual rights remains a complex challenge, one that necessitates careful consideration of both ethical principles and practical implications.