Mumbai: The government’s new definition of a surrogate mother is a woman genetically related to the “intending couple” (who will require an official certificate to use a surrogate), married with a child of her own, aged 25 to 35 years and can be a surrogate only once in her lifetime.

On August 5, 2019, as national attention was focussed on the revocation of special status for Jammu and Kashmir, parliament’s lower house, the Lok Sabha also passed, with almost no debate, The Surrogacy (Regulation) Bill, 2019.

The surrogacy bill prevents single parents, same-sex couples, divorced or widowed persons, transgender persons, live-in partners and foreign nationals from using a surrogate mother. While single parents and foreign nationals can adopt a child, this option for the others is ambiguous, as we discuss later.

One of 35 new bills passed in 37 days over June and August by the Lok Sabha, the bill prohibits commercial surrogacy and allows “altruistic surrogacy”, the process of getting another woman to bear your child if no charges or monetary incentives are involved, except for medical expenses and insurance coverage. The bill now awaits assent by the Rajya Sabha, the upper house.

Experts and activists said banning commercial surrogacy will also take away the livelihoods of women who rented out their wombs and would deny women rights over their own bodies. The new bill also provides for a new layer of government certification and regulation. Some said they intended to suggest modifications and called for further public debate.

While there are no precise data, India has now emerged as a global hub for commercial surrogacy 17 years after the start of what is now an unregulated industry estimated to be worth about $2.3 billion (Rs 16,465 crore) per year, employing thousands in more than 3,000 clinics nationwide.

When there was no regulation, single people, those in live-in relationships, same-sex couples--from India and abroad--could rent a womb to conceive a child in India. This is now restricted to married, Indian hetrosexual couples.

Experts said they had indeed suggested reforms but not “a complete umbrella ban”, as Manasi Mishra, head, research and knowledge management, Centre for Social Research (CSR), a women and girls rights advocacy, put it. She said a regulatory framework with “civil society involvement in monitoring could have been a better alternative”.

“By banning it, (the) industry will go underground,” said Manasi Mishra.

“Considering the Supreme Court jurisprudence [here and here] on live-in relationships, children of live-in couples are considered legitimate,” said Gargi Mishra, a gender rights lawyer at Sama, a Delhi-based resource group working on issues related to women and health. “Now, by denying surrogacy to these groups--single parents, homosexuals, transgenders--you are denying them their rights, making it a regressive or limited view of what a family is.”

Surrogacy had “great emancipatory potential”, said Gargi Mishra, for people who could not otherwise have children.

New definition for surrogate mothers

Surrogacy is defined in the new bill as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth”.

Surrogacy is permitted for “intending couples” with proven infertility; they should be Indian citizens, married for at least five years and without a child, whether biological, adopted or surrogate. The woman should be 23 to 50 years old and the man 26 to 55 years.

Proven infertility through diagnosed medical conditions should indeed be the only criteria to permit surrogacy, said Manasi Mishra from CSR. “We cannot permit the rich, famous and celebrities to have surrogate children because of cosmetic reasons and just because they can afford it,” she said.

The bill says central and state governments will appoint an “appropriate authority” to issue “certificate of essentiality” and “eligibility certificate” to the intending couple. It provides for a National Surrogacy Board and State Surrogacy Boards, which will advise government on policy issues, supervise and lay down codes of conduct for surrogacy clinics.

The bill defines a surrogate mother as “a close relative”, genetically related to the “intending couple”, a married woman with a child of her own, aged between 25 and 35 years and can be a surrogate only once in her lifetime.

Focus on a genetic child, traditional family

If the bill becomes law, same-sex couples, single-parents and live-in couples will not be allowed to opt for surrogacy, as they currently can.

Criticism of the bill has been evident on social media:

“These restrictions are written into the Bill, so yes, they will indeed take effect,” Madhavi Menon, director, centre for studies in gender and sexuality at Ashoka University, told IndiaSpend.

Manasi Mishra from CSR said commercial surrogacy in India had made surrogate children vulnerable to paedophiles, organ-transplant rackets and trafficking.

“On the other hand, we may raise the question: Why there is so much obsession about having (one’s) own genetic child through surrogacy?” asked Manasi Mishra. “Why would these couples, who are so desperate, not prefer adoption over surrogacy? Isn’t this a double-standard?”

‘An exercise in moral policing’

The surrogacy industry was not illegal but un-regulated. But it will, in effect, be illegal if the new bill becomes law because only altruistic surrogacy will be allowed, said Ashoka University’s Menon.

“Like all professions, surrogacy too needs to be regulated,” said Menon. “But the two questions we need to ask are: why ban surrogacy rather than regulating it? Secondly, why regulate only surrogacy when every single profession in India is steeped in exploitation and in need of regulation?”

“The response to both these questions, I think, is the nature of the demographic(s) involved.” said Menon. “Governments in power always like controlling women and their bodies.

“The Bill is largely an exercise in moral policing and social engineering. Banning surrogacy will only take away from women yet another means of their livelihood.”

“Women are once again being asked to use their bodies for the greater good without getting paid for it,” Menon wrote in Scroll.in on August 6, 2019. “Motherhood will be mystified as sacred, and women will be punished for being independent.”

Some said the ban should be followed by modification of adoption processes, so single people and homosexual couples can have children.

“But that is not followed,” said Harish Iyer, a gender and LGBTQ rights. “By banning commercial surrogacy they have made comments on homosexuals saying this is against Indian ethos… it is outright discriminatory to gay people.”

Can same-sex couples, live-in partners, single parents adopt?

A single parent can adopt a child, according to the ministry of women and child development’s Central Adoption Resource Authority (CARA), the nodal agency for child adoption in India. However, a single male cannot adopt a girl child, while a single female can adopt a child of any gender, according to the eligibility criteria, which read: “Any prospective adoptive parents, irrespective of his (sic) marital status and whether or not he has biological son or daughter, can adopt a child subject to” these criteria.

Through a circular on October 11, 2018, addressed to ‘Authorised Foreign Adoption Agencies’, the CARA withdrew a decision made four months earlier disallowing adoption by a single parent with a live-in partner in a long-term relationship.

“The policy on child adoption doesn’t say that a same-sex couple cannot adopt, nor does it say they can,” said Sunil Arora, governing council member, Maharashtra State Adoption Resource Agency and executive director Bal Asha Trust, a child-care and adoption agency.

Arora reasoned that since adoption through CARA is an online process and single women can adopt, their sexual orientation is not known. The system automatically allots a child, irrespective of a couple or a single parent based on their waiting list number, he said.

On August 8, 2019, IndiaSpend sent an email to CARA asking if it allowed adoption by live-in and same-sex couples. We will update this story if and when we receive their response.

“Though it is not mentioned, the unsaid thing is if you are a gay parent you cannot adopt, it is difficult,” said Iyer. “If you are a gay father they assume that you will abuse the child, thus aligning to the common myth that gay persons are child sex offenders. So when they do family screening (which comes after a child is allotted by CARA’s system), it gets stuck there.”

(Mallapur is a senior analyst with IndiaSpend.)

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Chaitanya Mallapur

    Chaitanya has a masters degree in politics from the University of Mumbai and a bachelor's degree in computer science. His areas of interest are foreign policy and security studies. He has also worked with ET NOW, a business news channel, as an assistant producer in the digital team.