Pregnant Indian women wait for a check-up at a government hospital in Amritsar. Photo: AFP
Pregnant Indian women wait for a check-up at a government hospital in Amritsar. Photo: AFP

Kalki Subramaniam’s hopes of becoming a mother have just hit another bump.

An extraordinary, independent transgender woman, she has battled conservative India, where transgender people and homosexuality are still objects of ridicule. In her fight for dignity and equality, she has won awards for her activism. As an actor, artist, writer and entrepreneur, she is educated, articulate and strong-willed. But her dreams of marriage and motherhood have just been dealt a blow by India’s proposed Surrogacy (Regulation) Bill, which would ban commercial surrogacy.

Aimed at saving poor women from “exploitation,” the Bill will mean that only married, heterosexual couples who lack biological or adopted children will be allowed to apply for surrogacy, and even then only a “close relative” will be allowed to provide the service.

Low costs and the absence of a legal framework have made India an attractive place to rent a womb. Although the economic scale of surrogacy is unknown in India, a 2012 study backed by the United Nations estimated the business to be worth more than US$400 million a year. A more recent estimate by the Confederation of Indian Industry pegged the annual value at over US$2 billion. Naturally, the Bill that was tabled in Parliament last month – amid a ruckus over India’s demonetization – came as a rude shock to the country’s more than 3,000 fertility clinics.

Dr. Anoop Gupta of the Delhi IVF and Fertility Clinic describes the Bill proposed by the Narendra Modi-led government as “totally thoughtless” and observed that it will raze the hopes of thousands of infertile couples. The surrogacy business has been fueled by enormous demand from countries such as the US, UK, and Australia. Surrogacy costs about US$100,000 in the US, but it can be achieved with less than half of that amount in India. An Assisted Reproductive Technology (ART) expert in the Indian capital – the country’s surrogacy hub – Dr Gupta claims that his clinic undertakes two to three cases of surrogacy a month, down from about 10 cases a month two years back.

Studies have shown that surrogates are mostly financially-deprived women who are hired by the uber-rich. While private clinics and unregistered agencies serve as intermediaries between surrogates and intending parents – who demand privacy and anonymity – the surrogates themselves are paid a paltry sum.

A surrogate mother who rents her womb to an Indian couple can expect to be paid between US$1,500 US$4,500 in what is a highly unregulated market. Attracted by the lure of the cash, poor women often become surrogates more than once. But whether a blanket ban on commercial surrogacy will save such vulnerable women from exploitation in “baby factories” is far from certain.

Some experts opine that the proposed Bill, if implemented, could actually backfire and lead to the rise of an underground surrogate market similar to that for kidney transplantation. Only close relatives are allowed to donate kidneys to patients in India. In Mumbai, a scandal recently came to light: villagers were selling their kidneys for about US$4,500 only for the organs to be resold by middlemen at exorbitant prices.

Sceptics believe disguised surrogacy will be hard to trace and will mean surrogate mothers losing their legal rights to payment and facing greater exploitation.

Under the proposed rule, foreigners, NRIs (Non-Resident Indian passport holders) and PIOs (Persons of Indian Origin) who hold Overseas Citizens of India (OCI) cards are banned from hiring surrogates in India.

Only “altruistic” surrogacy, where monetary benefits are not involved, will be sanctioned – and only for legally-wedded infertile Indian couples married for at least five years. Further, husbands must be between 26 and 55 years of age and wives between 23 and 50 years of age. Only a close, married blood relative – who must have borne a child for herself and is neither an NRI nor a foreigner – can be a surrogate mother. Indian couples with biological or adopted children have also been barred. Commercial surrogacy will entail a jail term of at least 10 years and a fine of up to Rs10 lakh (about US$15,000).

Another bone of contention is the discrimination against homosexuals, single parents and live-in partners, who can’t opt for surrogacy under the proposed rule.

“Don’t trans people and single parents, or any individual for that matter, have the right to parenthood?”

Sunita Ghosh (whose name has been changed for this article), who is 35 and a single parent by choice, may not be affected by the Bill but takes umbrage at the discrimination of her ilk. She recently quit her government job to return to her home town to undergo IVF. “To think that single parents aren’t capable of bringing up children is utterly premature. At the rate at which India is developing and with the amount of global exposure it has gained, it is high time the country had a rethink about personal freedom. I have chosen assisted pregnancy to fulfil emotional needs that are not particularly physical. For the government to ignore such emotional needs of people is blatantly gross. In my personal opinion, the Bill is a violation of personal choice.”

Kalki, who was honored last year  as one of Facebook’s 12 Inspirational Women of the World, says: “It’s disheartening to know that such a move has been proposed by the government. Don’t trans people and single parents, or any individual for that matter, have the right to parenthood? While on one side, the LGBT people are battling for social and family acceptance, on the other the move from the government to impose such discrimination shatters our dreams to have a family of our own.”

Several experts feel that instead of banning commercial surrogacy, the government should introduce strict regulations to check exploitation. Dr Duru Shah, president-elect of the Indian Society for Assisted Reproduction, tells Asia Times: “Single dads will be the most affected as they lose their option to save their bloodline in the absence of willing close relatives.”

Dr Shah adds: “I come across several cases where surrogacy is the only option, especially when women are born without a uterus or have had theirs removed due to complications. This apart, having close relatives as surrogates can give rise to relationship conflicts as the child grows up and learns about the biological mother. Instead, getting rid of agencies, doing away with middlemen and regularizing commercial surrogacy would be a better idea.”

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