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At its best, surrogacy can allow low-skilled Indian women a life-changing amount of income; at its worst, it can be exploitative and physically dangerous. Either way, Prime Minister Narendra Modi's government is looking to shut down the industry almost entirely.   © Illustration by Parvati Pillai
The Big Story

'Wombs for hire' mothers become pawns in Modi's culture war

A looming ban on surrogacy threatens to close a route out of poverty

KIRAN SHARMA, Nikkei staff writer | India

ANAND, India -- This is the second time in three years that Meena has rented out her womb. The 35-year-old from India's western state of Gujarat left school at 12 and worked in menial jobs, most recently at a limestone products factory where she says she earned 50 to 60 rupees -- less than a dollar -- per day.

Her husband left her to raise two teenage sons alone. In 2017, she signed up as a surrogate at the Akanksha Hospital & Research Institute, a fertility clinic in Anand, a small town around two hours outside the state capital of Gandhinagar.

Surrogacy, which pays around 400,000 rupees (around $5,300) has become a route out of abject poverty for many women in rural India, although there is no reliable data on the actual number of people who go through the process. Women who spoke with Nikkei Asian Review in Anand said that the "huge" sum can be life-changing.

"I became a surrogate to fund my kids' education and fulfill all their necessities," Meena said. "I don't regret it, as I'm doing all this for my children."

Although it had long been practiced in the informal sector, commercial surrogacy was legalized in India in 2002. It spurred the creation of an industry that, by 2009, was estimated by the Law Commission of India to be worth 250 billion rupees. That is the last available estimate of the size of the sector.

  © Illustration by Parvati Pillai

Hospitals like Akanksha, a state-of-the-art three-story clinic with a surrogate house in its basement, were able to build their businesses around India's plentiful supply of skilled medical professionals, relatively low costs, and its supply of willing surrogates. Around 1,500 children have been born to surrogates since the clinic's first such birth in 2004.

That business is now facing extinction. Critics say the Hindu-nationalist government of Prime Minister Narendra Modi is increasingly pushing its own conservative view of "family values," and has set its sights on the surrogacy industry. A bill was passed in India's lower house last August and revised in February, and is working its way through the country's legislature -- even with the coronavirus pandemic playing havoc with the parliamentary calendar. If passed, it would allow only altruistic surrogacy and ban all commercial surrogacy in India.

Its proponents from within the ruling Bharatiya Janata Party say that it protects women from abuse and exploitation. But many in the industry and in women's rights groups say that it is another example of a central government decision made on the behalf of economically disadvantaged Indian women, silencing their voices in a debate where their rights are in question. They say it highlights complex divisions in class and gender, heightening across an India split by a culture war driven by the BJP's Hindu nationalist conservatism.

Surrogates at the Akanksha Hospital & Research Institute, in their designated quarters at the facility. Most asked to keep their identities private and to be shown with head coverings. (Photo by Nandan Dave)

"There is no doubt this government thinks in a conservative manner," Narayan Bareth, a political analyst, told the Nikkei Asian Review. "All the marginalized groups in the country such as women, [indigenous peoples], religious minorities, and Dalits or low-caste Hindus feel the same [about the government]."

The BJP, he pointed out, takes its guidance from Hindu organizations such as Rashtriya Swayamsevak Sangh. "Many Hindu groups in the country have questioned women's liberty and freedom," Bareth said. "But when you are ruling a country, you are not representing just one faith or gender -- you are representing the whole country."

Medical tourism

It was the BJP government of Atal Bihari Vajpayee that first legalized commercial surrogacy nearly two decades ago, as a part of an effort to expand India's medical tourism sector. Successive administrations have tried to promote the industry, aggressively marketing India's private hospitals as a low-cost, high-quality destination for international clients and relaxing visa requirements for tourists travelling for treatment. By 2010, medical tourism was worth an estimated $2 billion to the economy, according to the Ministry of Tourism, and was forecast to grow to ten times that by 2020.

Those ambitions were not met. In December 2017, the Modi government's then tourism minister, K.J. Alphons, informed parliament that the value of the Indian medical tourism had hit $3 billion in 2015, and revised the forecast down to $9 billion by 2020.

"Assisted Reproductive Technologies" -- fertility treatments -- in general, and surrogacy in particular, were seen as areas in which the country could carve out a particular niche. The procedure, which involves an embryo being conceived through in vitro fertilization and implanted in a surrogate's womb, can cost upwards of $100,000 in the U.S.. Indian clinics could offer the same service for a third of that. Many foreigners took up the opportunity. A 2012 Lancet study estimated that at that time 25,000 children were being born to surrogates annually, half of which were on behalf of Western clients.

Hospitals like Akanksha, a state-of-the-art three-story clinic, were able to build businesses around India's plentiful supply of skilled medical professionals, relatively low costs, and its supply of willing surrogates. (Photo by Nandan Dave)

After India legalized commercial surrogacy, the business surged. But as it grew, so too did its associated controversies.

"With popularity comes criticism, including that a child was being commoditized and surrogates exploited," said Archana Jyoti, a New Delhi-based health columnist. Media coverage of controversies involving foreign nationals stoked the flames.

The most high-profile of those cases came in 2008, when a Japanese couple had a baby girl, Manji, through an Indian surrogate. The couple divorced before the child was delivered, leading to a protracted custody dispute.

Various efforts were made to regulate the industry, and in 2012 the visa requirements for foreigners seeking to procure surrogacy services were tightened. In 2015, the government announced it would no longer issue surrogacy visas, effectively ending the trade.

"Surrogacy seems to be one area involving ART that garnered a lot of sensationalist attention," said Sneha Banerjee, a researcher at the Center for Women's Development Studies. "Mostly because of transnational cases."

The domestic market continued to thrive, however. There are many reasons that couples turn to surrogacy, but societal pressure on women to have children is strong, as is the stigma against adoption.

One couple from Bangalore, who spoke to Nikkei on condition of anonymity, said that a married woman unable to have a child can lose the respect of her community and family. The couple, who could not conceive naturally, have concealed their use of a surrogate from most of their friends and family.

"We haven't told anyone except our parents," the husband said. "We even moved house, otherwise our neighbors would have got to know."

"Surrogacy was my last option," said Sunita Thanvi, 41, who had attempted in vitro fertilization five times. "I'm having goose bumps when I'm talking about the birth of my child, as it still feels like a dream." (Photo by Nandan Dave)

Some users of surrogacy services were happy to go public, however. Sunita Thanvi, 41, is a private school principal in a small town in the northwestern state of Rajasthan. After attempting unsuccessfully to conceive through IVF five times -- spending more than 1.8 million rupees -- she and her husband turned to surrogacy last year. As she spoke, she caressed her son, born in December last year.

"Surrogacy was my last option," she said in an interview at the Akanksha clinic. "Now I feel I should have gone for it after the first or second failed IVF attempt. ... I'm having goose bumps when I'm talking about the birth of my child, as it still feels like a dream," added Thanvi. "I got my own child, my own blood, I'm so happy. I wish I could become a brand ambassador of [commercial] surrogacy."

Legal disputes

The Surrogacy (Regulation) Bill was first introduced to India's lower house in 2016, but lapsed after Parliament was dissolved for the April-May 2019 general elections. However, efforts to regulate the industry began almost as soon as it was legalized.

One of the first indications of tightening oversight over the field came in 2012, when the then United Progressive Alliance government issued directives saying that foreigners would need a special visa to commission surrogacy in India and could no longer use the tourist visa. Then came the announcement in late 2015, more than a year after Modi's BJP came to power, that no more visas would be issued for this purpose.

  © Illustration by Parvati Pillai

After passing in the BJP-dominated lower house in August 2019, the most recent bill is expected to be reintroduced in parliament when it reopens following the most stringent phase of the country's COVID-19 lockdown. The lockdown has already disrupted the surrogacy industry, clamping down on demand and compelling clinics to focus only on essential services.

If passed, the bill would ban all commercial surrogacy, and impose rigid limits on who would be eligible, even with recent revisions. As per the original bill, only a married heterosexual couple can apply, and they must be childless, with exceptions for those with severely disabled children. The surrogate has to already have a child of her own, and be between 25 and 35 years old.

The government has sought to portray the bill as a way to protect women from exploitation. "This bill is the need of the hour," Health Minister Harsh Vardhan said when presenting it to the lower house last year. "Its purpose is to ensure effective regulation of surrogacy, prohibit commercial surrogacy and also allow ethical surrogacy. It will prevent exploitation of surrogate mothers and children born through surrogacy."

R.S. Sharma, head of the Reproductive Biology, Maternal and Child Health division of the Indian Council of Medical Research, part of the Ministry of Health and Family Welfare, told Nikkei that the bill was needed "because in India the surrogate mother is being used as an incubator, and faces exploitation." He cited media reports of the exploitation and deaths of surrogates, and said there was also a need to shut down black market clinics.

For example, a 42-year-old surrogate, a widow who was 17 weeks pregnant with twins, died last year in New Delhi. She was referred from a private hospital to the government's prestigious All India Institute of Medical sciences for consultation regarding complications related to pregnancy. "It was revealed that she [became a surrogate] in exchange of monetary benefits and had concealed her past medical history of tuberculosis, hydrocephalus and depression," according to a report in the RFP Indian Journal of Hospital Administration. "She was either forced to hide her diseases or herself concealed past medical history for financial gains," the report said.

Abhishek Yadav, assistant professor at AIIMS' forensic department and one of the authors of the report, said that banning commercial surrogacy could help to prevent such cases. "Various measures should be taken to ensure safety and health of a surrogate mother which [are] not present [currently]," he told Nikkei.

Dr. Nayana Patel, who runs the Akanksha Hospital & Research Institute in Anand, agreed that regulation might be necessary, but that a ban will only force surrogacy underground or offshore. (Photo by Nandan Dave)

Some women's rights advocates have also welcomed the bill, saying that it has at least sparked a discussion about the vulnerability of women with low incomes and limited education to exploitation.

"We hope that there would be a healthy discussion around this issue now," said Manasi Mishra, research head of the Center for Social Research, which has often raised concerns about the treatment of surrogates.

"Their exploitation should be stopped because they have little ... negotiating power [when they agree to become a surrogate]," Mishra said. "Most of the time they are semiliterate so they don't know whether any contract is actually there or not."

Mishra does not favor a complete ban, but has called for stronger regulation, including a national registry for surrogates.

The bill's opponents say that if the intention was to prevent exploitation, it should have focused on ensuring consent and protecting all women involved in surrogacy, not just those seeking commercial gain.

"Nobody denies the fact that there is exploitative potential; so, for that, what is a considered response?" Banerjee, at the Center for Women's Development Studies, said. "The considered response is to have mechanisms so that exploitation does not occur. ... And if you think surrogacy is exploitative, then ban surrogacy. The government is not doing that. It is only banning commercial surrogacy."

  © Illustration by Parvati Pillai

Critics also warn that the bill is also a way to impose a rigid interpretation of the family, in line with the current government's religious conservatism.

"When you say only a married man and a woman [can go for altruistic surrogacy] you basically say that single parents, homosexual couples and heterosexual unmarried couples are not a legitimate family," Banerjee said. "So you want to maintain a very conventional view of the family."

Opponents see it as part of a spectrum of behavior by the ruling party, which they claim has aggressively pursued its majoritarian "Hindutva" agenda since taking office, and more so since it was reelected in a landslide in 2019. Since then, the government has revoked the special status of the majority Islamic region of Jammu and Kashmir and amended citizenship regulations to allegedly marginalize Muslims, prompting widespread protests. The more overt attacks on marginalized groups have been mirrored by what critics say is a creeping, reactionary conservatism at many levels.

In that context, activists said that the sudden decision to ban commercial surrogacy can be interpreted as an assault on women's rights and autonomy, and on the rights of any group that does not conform to the RSS' view of the family.

"A woman's bodily autonomy is guaranteed under the Indian constitution," said Rituparna Chatterjee, a women's rights activist who runs the popular #MeTooIndia handle on Twitter. The ban on commercial surrogacy is a legal overreach that does not consider individual autonomy and disregards gender rights, she said. "It doesn't take into account intersectionality, the right of unwed and single women," apart from those widowed or divorced, Chatterjee added. "[It] buys into the structural concept of family."

Going underground

The industry, unsurprisingly, also opposes the ban. Nayana Patel, who runs the Akanksha Hospital & Research Institute in Anand, agreed that regulation might be necessary, but that a ban is too blunt an instrument that will just force surrogacy underground or offshore.

"If you ban it, agents will take it underground or take surrogates out of the country for the procedure," Patel said. "You cannot stop surrogates going out of the country and doing it on their own through agents once the government brings in the ban. When there is a demand and no supply, there will be black-market, underground surrogacy."

Some agencies have already moved overseas in anticipation of a clampdown. Gaurav Wankhede, founder and director of Mumbai-based agency Become Parents, moved most of his business out of India four years ago. "It was just a matter of time before the government implemented this," he told Nikkei.

Wankhede, who now operates his agency from Kenya, Russia, California in the U.S. and Mexico, feels Indians will look abroad for surrogacy services after the ban is in place. "Having a child of their own is the ultimate dream for any couple," he said. "They'll put off buying a house, they'll probably put off buying a car... for [commercial surrogacy] they will go anywhere if it is not allowed in their home country."

"The solution is not to ban things," he added. "The solution is to have good regulations and very strict enforcement."

  © Illustration by Parvati Pillai

Surrogates who spoke with Nikkei -- the women the ban is supposed to protect -- also questioned the decision to end commercial surrogacy. Many said that they struggled financially before they became surrogates, and although they have had to bear the stigma that comes with their decision, the money they have made from it has allowed them to take control of their lives.

Geeta, a 36-year-old, and second-time surrogate, told Nikkei she was paid 700,000 rupees to deliver twin girls for a Thai couple before the ban on foreign clients was passed. She spent the money on repairing her house and medical treatment for her husband. This time around, she plans to spend her earnings on her children's education. Sumitra, 30, used the proceeds of a 2016 surrogacy on an autorickshaw, which she now rents out for 200 rupees per day.

First-time surrogates said that they see the service as a way to pull themselves out of poverty. One 31-year-old woman, who asked for her name not to be used, moved away from home, telling family and friends she had got a temporary job. Only her husband knows what she is doing.

  © Illustration by Parvati Pillai

"Even if I work my whole life, I'll not be able to earn this much," she said, hiding her face with her stole as she spoke in Patel's Anand clinic.

"I want to have my own house," said another, a 36-year-old earning 10,000 rupees a month working in a diamond factory. "I live in a rented accommodation paying 3,000 rupees a month to the landlord. Then there are other expenses like food, transport and electricity. It's difficult to manage everything in my small salary."

In a country which is ranked among the worst in the world for gender equality -- it placed 112th in the World Economic Forum's 2019 Gender Gap report -- the social and economic factors that drive a woman's choice to become a surrogate are complex. But the ban on commercial surrogacy is a blunt instrument, which its critics say is driven more by politics than by a real understanding of the choices facing women in low-income communities in India.

Duru Arun Kumar, associate professor of sociology at Netaji Subhas University of Technology, said that some of the conditions of the bill are "patriarchal."

"Though the industry needs to be regulated, it's the woman who should decide [whether she wants to be a surrogate or not]," she said. "If you want to ban commercial surrogacy you first ensure financial support or employment to these women, who are semiliterate, economically disadvantaged and are mostly not supported by their spouses -- all of which drive them to take up surrogacy and, in a way, compromise their health."

"There is no reason for us to glorify surrogacy," Banerjee said. "At the same time, there is no need to victimize people who make certain choices which you may not agree with."

The whole debate, she said, is symptomatic of an endemic problem of the stigmatization and the proscribed role of women within Indian society. "Why is it not acceptable in our society to accept women for what they are?" she said. "Why do we have to link the amount of honor that they get [to] their fertility, a tragedy of patriarchy which is something that forces women and men to go through extremes [to have a baby] like spending an insane amount of money?"

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