Protecting the Rights of Surrogate Mothers in India
The plot of the Marathi-language film “Mala Aai Vhhaychy” (“I Want to Be a Mother”) asks a deceptively simple question: Does Yashoda, a woman turning to surrogate motherhood as an escape from poverty, have any claim on the child she is under contract to bear for Mary, an American fertility tourist? In the melodramatic world of Indian cinema, the answer is a heartwarming yes. In real life, it may not be that easy to script a happy ending.
“Mala Aai Vhhaychy”
Since 2002, when commercial surrogacy was legalized in India, the surrogacy industry has boomed, becoming a key part of the country’s lucrative medical tourism market. The cost of surrogacy for prospective parents is about $14,000 in India, compared with an estimated $70,000 in the United States. A 2008 study valued the assisted reproductive industry in India at $450 million a year. Across India, fertility clinics attempt to replicate the success of Akanksha and other clinics in the small town of Anand in the western state of Gujarat, which was the country’s first surrogacy hub. But the boom masks growing concerns about the rights of the women, many of them from poor homes and sometimes illiterate, who choose to become surrogate mothers.
Up to now, India’s laws have not addressed directly the complexities of surrogacy, though an assisted reproductive technology bill is before Parliament and expected to be ratified by early next year. But a team of researchers from Sama, a nongovernmental women’s health organization, has raised concerns about the bill in a recent paper. “The many ethical issues that are emerging out of unrestrained spread of the technologies remain,” the researchers write.
The legislation attempts to regulate the clinics and doctors engaged in reproductive technologies and their relationship with prospective surrogate mothers. While Sama welcomes this attempt to govern the industry, it fears the legislation favors the rights of the commissioning couple over those of the surrogate mother. The bill makes it clear that women engaged in commercial surrogacy will have no rights over the child they have contracted to bear. The proposed law does not spell out what a surrogate mother would be paid in the case of a miscarriage or other complications during pregnancy.
“In 2008, Dr. Sadhna Arya, a gynecologist in Jaipur, was part of the team of doctors involved in the complex case of a baby who was born to an Indian surrogate mother after the contracting couple, from Japan, decided to divorce. At the time, Dr. Arya spoke out against the way in which surrogate mothers were treated in India: “You have treated the surrogate mother like an object, used her as a factory.”
Before India, only the American upper classes could afford a surrogate,” he wrote. “Now it’s almost within reach of the middle class. While surrogacy has always raised ethical questions, the increasing scale of the industry makes the issue far more urgent. With hundreds of new clinics poised to open, the economics of surrogate pregnancy are moving faster than our understanding of its implications.”