A couple from Britain hold their baby, born by a surrogate, in Anand, India. Photo / AP
India's Government has cleared the way for a measure that would ban all commercial surrogacy in the country, allowing only close family relatives to become surrogate mothers.
The proposed measure is a blow to the thriving but unregulated rent-a-womb industry that many activists say is exploiting poor women.
The Surrogacy Bill 2016 will be presented in Parliament for approval in the next session.
"This is a revolutionary step for women's welfare," said Sushma Swaraj, India's Foreign Minister, who presided over a panel that examined the legal and ethical issues involved in commercial surrogacy and drafted the bill.
"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."
In the past decade, India has emerged as one of the top destinations for childless couples from around the world who pay impoverished women here to give birth to have their children.
India and the United States are among a handful of countries where the practice of in-vitro fertilisation and embryo transfer is allowed.
According to one estimate, at least 40,000 surrogate babies were born in the past decade. Many foreigners came to India to hire affordable surrogate mothers for a price that could range from US$8000 to US$40,000. Swaraj said there are about 2000 surrogacy clinics across India. A New Delhi-based women's group called Sama said that the practice was a US$400 million industry.
When the new law comes into force, surrogacy will be allowed only for a close family relative of a childless couple under what Swaraj called "altruistic surrogacy". But only childless, married couples who have waited five years and have a doctor's certificate to show they are medically unfit to have their own children are eligible to engage surrogate mothers.
Live-in couples, single parents and same-sex couples cannot opt for surrogacy, because Indian law does not "recognise" gay relationships, Swaraj said.
"Divorce is highly prevalent in foreign countries. We have had cases where the couple take the child from the surrogate mother and then they get divorced after some time," she said. "The child belongs to nobody. This is why we disallowed foreigners."
Swaraj said the Government studied the British surrogacy law closely, which allows blood-relatives to be surrogate mothers. "We expanded that to close relatives," she said. Only a woman who already has one healthy child will now be eligible to become a surrogate mother for a childless relative.
Surrogacy is something where everybody is a winner
But some say the proposed ban goes too far.
"A ban is an overreaction and difficult to implement. When you ban something, you just drive the whole business underground," said Ranjana Kumari, who heads the Centre for Social Research, which conducted a study on the industry.
"We lobbied for safety mechanisms that would regulate the practice and guarantee the rights of surrogate mothers. We did not want poor and uneducated women to be at the mercy of middle men. We wanted certain responsibilities put on doctors as well."
Once the bill is passed by Parliament, it will take 10 months to come into effect, Swaraj said, so that the women who are already pregnant are not affected.
Clinicians specialising in surrogacy will face 10 years imprisonment if they are found to be disrespecting the rights of surrogate mothers or abandon a child after birth. Clinics will also have to store the files of surrogate children for 25 years.
Doctors who have conducted procedures for surrogate mothers said a ban is not a good decision because the practice was a win-win option for everybody.
"Surrogacy is something where everybody is a winner. A poor woman makes some money to secure her family's future, it is a boon for a childless couple, and the country's economy is benefited by medical tourism," said Anoop Gupta, a doctor who is the patron of Surrogacy Society of India. "It is a foolish decision."