Commercial Surrogacy

Commercial surrogates against ban 2016

Over the past two decades, a complex transnational market in commercial surrogacy has emerged worldwide. Until 2015, India was a key market for this burgeoning sector of reproductive tourism. Made popular by medical entrepreneurs like Dr. Nayna Patel of Akanksha Fertility Clinic in the city of Anand in Gujarat in the 1990s, by 2012 commercial surrogacy in India was thought to generate USD 2.3 billion annually. The Indian Council for Medical Research in fact predicted its growth into a USD 6 billion-per-year industry. Key to the development of this sector was a medico-liberal legal framework quite unlike the laws in several European countries, which strictly prohibited commercial surrogacy. Benefiting from the regulatory arbitrage of countries’ quite varied approaches to surrogacy, almost 3000 surrogacy clinics are said to have mushroomed all over the country with thousands of working class, typically married women, in their 20s and 30s bearing babies for commissioning parents from overseas and India.

Over the past 15 years, numerous legislative drafts on surrogacy have been proposed to regulate surrogacy in India, making India possibly the only country in the world to seriously consider all possible regulatory approaches to surrogacy ranging from a liberal, contract-based model in the late 1990s to a prohibitionist, carceral model in 2016. The government’s proposed regulation of surrogacy corresponds with three phases of the sector’s development: an emergent medico-liberal phase from the late 1990s up to 2008; a highly contested phase between 2008-2012 and a contracting and normative phase between 2012 and 2017. In the initial years, the Indian Council for Medical Research (ICMR), through its 2005 National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, set the terms for interactions between stakeholders in the ART industry, effectively shaping its political economy. These guidelines allowed for commercial gestational surrogacy and the compensation of gamete donors and were informed by a public health view of infertility, which was liberal in permitting the commodification of female reproductive labour for the market.

Between 2008 and 2012, business boomed and litigation arose only when commissioning parents sought to take babies home and their home countries banned surrogacy, or where parents divorced after commissioning surrogacy. The ICMR meanwhile drafted the ART Bill based on its 2005 Guidelines. Various versions of the Bill emerged in 2008, 2010, 2012 and 2014.

As the surrogacy sector grew, but no statute was forthcoming, in 2012 the Ministry of Home Affairs deployed administrative procedures and surrogacy visas to regulate the sector. These were targeted primarily at foreign commissioning parents. Meanwhile in response to a 2015 public interest petition in the Supreme Court to prohibit surrogacy, the government banned surrogacy by foreigners. The government proposed to pass the Surrogacy (Regulation) Bill, 2016 meant to reflect the ‘ethos of the Indian people’ and which sought to ban commercial surrogacy altogether and only permit altruistic surrogacy performed by a close relative of the commissioning couple; only medical expenses and insurance costs were reimbursable. Further, commissioning parents had to be Indian citizens. The Bill had a chilling effect on the surrogacy sector.

Laws regulating surrogacy have thus gone from being highly favourable to fertility clinics (and less so to surrogates) to protecting surrogates and punishing clinics. Over this time, categories of who could avail of commercial surrogacy progressively narrowed, excluding gay, lesbian and transgender individuals and couples in 2012, then foreigners, including even those of Indian origin in 2015 and now prohibiting commercial surrogacy altogether.

The Surrogacy (Regulation) Act, 2021 and Assisted Reproductive Technologies (Regulation) Act, 2021 were finally passed by Parliament in December 2021 but have already been challenged in various Indian courts including in the Supreme Court. Hence the legal landscape around surrogacy and ARTs remains unsettled. The project will study the political economy of the surrogacy and ART sectors under these new laws.