FOR LOVE OF A CHILD

Wealthy Indians travelling abroad to have children through surrogacy points to problems in India’s law

THE AFTERMATH OF constricting surrogacy laws has become manifest in the latest trend of urban, economically solvent Indians travelling overseas to have children through surrogacy. A report in this newspaper points to the burgeoning number of Indians heading to the US, Canada, Mexico, Colombia and to countries in east Europe, including Georgia, to avail commercial surrogacy at prices that can range from Rs 6 crore to Rs 50 lakh, depending on the country of choice. The cross-section of people availing it is telling — single men and women, same-sex couples as well as couples with children of their own who want to opt for surrogacy for their subsequent family building. It puts the spotlight on the challenges and lacunae in the regulation of family and reproduction rights in the country.

Progress on the regulation of surrogacy has been incremental in India, where commercial surrogacy became legal in 2002 and saw a rapid boom because of its affordability and the trickle-down economic benefits it afforded women from lower socio-economic strata. The rise of a rent-a-womb industry, with Anand in Gujarat its ground zero, necessitated a regulatory framework that could curb exploitation and malpractices. In 2015, the government made commercial surrogacy illegal for foreigners. A year later, the concept of altruistic surrogacy was introduced. In its present avatar, only altruistic gestational surrogacy that receives no financial or material compensation is allowed. There are other restrictive criteria: Couples can use donor gamete for surrogacy only if medically mandated; the option of surrogacy is accorded to married couples with medical conditions that make conception impossible and to widowed or divorced women. It leaves out livein couples, LGBTQIA+ couples and single people from its ambit.

This makes for an inherently unequal landscape where the idea of a family is still guided by a patriarchal imagination. It mandates marriage for a heterosexual couple and only recognises need — and not desire for children — as a further eligibility clause. Assisted Reproductive Technologies come at a cost that often make access to them restrictive for the economically weak. A narrow imagination of eligibility additionally accentuates the stigma that single people, especially women, and same-sex couples face for their choices. In February, while responding to a single woman’s petition challenging the surrogacy laws as discriminatory, the Supreme Court remarked upon the necessity of protecting the institution of marriage. Yet, laws need to keep up with changing times and aspirations. Surrogacy laws in India need to be mindful of atypical families, endorsed by the apex court in a 2022 judgment, to ensure that becoming a parent does not become the privilege of a few.