Last week, the Lok Sabha passed the Surrogacy (Regulation) Bill which marks a significant step in checking against the practice of “renting a womb,” also known as commercial surrogacy. The bill seeks to ban commercial surrogacy while legalising altruistic surrogacy in which a surrogate mother is a “close relative” of the intended couples so that no monetary compensation is paid.
The need for a legal framework for regulating surrogacy has been widely recognised. But the provisions of the bill have not gone down well with certain sections of society. Specifically, the ban on commercial surrogacy is criticised by those adversely affected: intending single parents and couples who are excluded from the definition of eligible couples, doctors and medical establishments peddling solutions, the associated pharma industry, legal professionals, and some elected representatives speaking on behalf of the affected parties. They are also joined by “libertarians” who believe in individual freedom and free market and expect minimal government interference.
Those opposed to the ban on commercial surrogacy cite at least three reasons in its defence. First, banning commercial surrogacy is restricting consumer choice on one hand and depriving the needy of an income earning opportunity on the other. In a market economy, where people do sell their time, labour and skills, why can’t women rent their wombs? If both parties to a transaction can strike a win-win deal, why prevent it? Second, by banning commercial surrogacy and limiting the eligibility criteria, the country will lose an economic opportunity from this growing market segment that could potentially generate a few billion dollars in income overtime. Three, banning will not stop commercial surrogacy; it will only move the activity “underground” that will deprive the parties of the legal protection. Let’s examine each of these arguments.
Renting a womb is not like renting a bike. Unlike many commodities for which reliance on the market can provide efficient and desirable outcomes, trade in human organs or the body can’t be left to market forces, for it is a deeply ethical/moral issue. The logic of commercial renting of wombs is no different from the logic of allowing trade in human organs. If trade in human organs or the body is permitted, it can lead us to a situation where humans are raised and killed just to harvest their organs. Commoditisation of human organs or body parts is a terrible idea. Humans ought to be valued for their intrinsic worth and not for their organs and bodies. This issue that has far-reaching ramifications and needs to be looked in its totality. It’s not to be swayed by the self-interest of some sections of society.
On the lost economic opportunity, it’s true that banning commercial surrogacy will deprive the country of an additional growth opportunity, especially when India is eyeing to become a hot-spot of medical tourism. However, every human activity cannot be looked at from the lens of business and commerce. It is better to let go of some economic opportunities if those are in contradiction with certain well-established social and cultural ethos. The approach adopted in the bill is consistent with the approach followed in other related areas such as blood donation, organ donation, and donation of dead human bodies for teaching and research.
On the effectiveness of the ban, yes, banning of commercial surrogacy will not stop it completely. Some of it will continue albeit illegally but such cases are likely to remain limited as escaping the law for a longish (gestational) period acts as a natural disincentive. Any regulations that most people can abide by with relative ease are good regulations. Further, placing things in black and white, which is what the ban does, makes it easier to regulate than regulating a few shades of grey among several grey shades. The fact is that India has been able to implement the prohibition of sex-selection with reasonable success, and there is no reason why the ban on commercial surrogacy cannot be regulated successfully.
All this is not to mention that the bill is perfect in its current form. There are some areas where the provisions can be fine-tuned such as in the definition of an “eligible” couple, ensuring the genuine consent of surrogate mothers and so forth. The bill may have erred on the side of being a little too conservative. But this cannot become the ground for considering it a faulty bill. The provisions of the bill can always be fine-tuned subsequently in keeping with the regulatory capacity for sophisticated regulations. Let perfection not become the enemy of good. The current provisions of the bill provide for a good enough start for now.
In the current environment where some people are talking of protecting individual liberties and institutional autonomy, there is a tendency to be overtly critical of the government. Actually, the government deserves credit for moving the bill and getting it passed in the Lok Sabha. The focus should now turn to quickly getting the bill converted into law and implemented on the ground!
The writer is a development economist, formerly with the Bill & Melinda Gates Foundation and the World Bank.
