India Bans Surrogacy for All the Wrong Reasons

Many couples who live in countries where surrogacy is illegal (or prohibitively expensive, as is often the case in the United States) have turned to India to finance their dream of becoming biological parents. India’s famously lax laws and cheap health care have earned the county the reputation of being something of a reproductive wonderland for foreign couples hoping to start their families with the aid of a surrogate.

Thanks to the influx of foreign money, business is booming. The industry is estimated to generate around $2 billion dollars for the Indian economy annually.

This financial windfall, however, has come at a disturbing expense for many of the women—who more often than not are poor and from disadvantaged backgrounds—that volunteer to serve as surrogates. For instance, some fertility clinics have been known to falsely advertise large sums of money in exchange for services as a surrogate, only to renege on their financial obligations upon birth of the child. Other clinics are reportedly kept in unsanitary conditions. Many surrogates have had post-pregnancy health care needs that went unmet and unpaid for.

Last month, the Indian government unveiled legislation to supposedly address these maladies. However, the proposed bill would do much more than simply tighten up the country’s famously lax surrogacy laws: it would institute an outright ban on all forms of commercial surrogacy.

Foreign LGBTQ and unmarried people have already been prohibited from enlisting the services of a surrogate in India since 2013. But if the bill becomes law, all foreigners, gay or straight, will join the blacklist. This means only Indian citizens would be able to undergo a surrogacy journey in the country. And even then, the bill would require the couple in question to be legally married for at least five years, and to use a surrogate who is a close relative.

Recently, India’s Foreign Minister, Sushma Swaraj, justified the strict new law in a news conference by arguing “many so-called childless couples were misusing the wombs of poor women. It was a matter of great worry because there were instances where a girl child or disabled child have been abandoned soon after birth.”

However, Swaraj, who is part of the conservative Bharatiya Janata Party, also noted some less laudable motivations for banning commercial surrogacy as well. She defended the ban on all LGBTQ couples, including Indian locals, from using surrogates because same-sex parenthood “doesn’t go with our ethos.” She further justified the sweeping ban on all other foreigners because “divorces are very common in foreign countries.”

The total disregard for the safety and respect of many of India’s surrogates—people who are volunteering their bodies and months of their lives so that others may start their families—is unconscionable. India’s policymakers have the moral imperative to do whatever it takes to protect their citizens from exploitation.

But an outright ban will not necessarily protect India’s surrogates; many observers fear that strictly prohibiting rather than regulating surrogacy will simply push the big business into the country’s black market, which promises even less safe conditions and worse treatment of an already vulnerable population.

“Why are they restricting surrogacy to married couples?” asked Abhishek Manu Singhvi, a spokesperson for India’s opposition party who questioned the logic of an outright prohibition against commercial surrogacy. “If all categories are banned, why have surrogacy at all?”

His question is rhetorical, but the answer seems clear: though the ban purports to be in service of the country’s poor and vulnerable, the government is also motivated by dangerous and outdated norms of gender, sexuality, and family life that are out of step with a modern India.

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