Surrogacy in Asia

Inadequate regulations in Asian countries have made surrogacy a complex, cross-border business often operating without proper medical ethics. With time and technological advances, what was merely an unfulfilled dream for many couples and individuals has now turned into reality. Even if one’s own physical body is not biologically capable of reproducing, having a child is possible due to the fact that medical science has succeeded in crossing biological restraints and boundaries. Due to various methods like IVF and Surrogacy, infertile heterosexual as well as homosexual couples, transgender people, individuals (or “single parents”) can also now have a child and raise them.

Among all these methods, Commercial Gestational Surrogacy (CGS) is probably the most convenient and sought-after procedure as it essentially entails renting a womb in another woman’s body for the foetus to develop and safely give birth to the infant child which is then handed over to the parents. CGS includes the parents of the child paying for the medical expenses and nutrition of the surrogate as well as compensating them separately for carrying their child to term, in other words,it connotes a purely commercial transaction.
There is another type of surrogacy known as ‘Altruistic Surrogacy’ wherein the surrogate (often a relative or acquaintance of the parent/s) only gets reimbursed for her medical expenses and other related expenses that she has incurred during the pregnancy but there is no separate payment as such.

While the medical technologies exist to facilitate such surrogacies, their costs are often exorbitant and they are not easily accessible to people around the world. This leads parents especially from the Global North to search for surrogate mothers in the Global South particularly in Asia where surrogacy has become a business onto itself, the degree of legality varying from one state to another.

For the first decade of the 21^st century, South and Southeast Asia was a lucrative destination for many aspiring parents who would come here to look for surrogate mothers, the main reason being the low cost of CGS (for instance, the cost of surrogacy in India is 1/3^rd of the entire process in UK) and also because of the high availability of surrogate mothers from which the parents could choose. Girls as young as 16/17 from less privileged families in Cambodia often resort to being surrogate mothers as it signifies a considerable  amount of earnings for them in a somewhat short span of time without necessitating any extra qualification.

It is precisely because of this purely transactional nature that the governments and medical councils in the Asian countries have become increasingly cognizant of the possibilities of physical and mental exploitation for the girls/women at the hands of the would-be parents, the brokers through which the parents and the surrogate get acquainted, the medical clinic visited, and more importantly, their family and society at large. Fearing economic and physical exploitation along with issues pertainingto human rights of the mother and the baby (specifically the baby’s national identity if the parents are from another country), the governments have attempted to put a ban on CGS. The prohibition, however, has been counterproductiveleading to CGS becoming an “underground business”,in the process, involving  more risks for the surrogate mother and the baby because whatever little legal regulation existed hitherto, is not present any longer,  and, significantly,  there is no legal body to turn to in case  there is actual exploitation.

From 2002, India was one of the main destinations for surrogacy because of the relatively low cost until international surrogacy was outlawed in 2015, as in the opinion of critics, the entire process was imperialist and oppressive and did not safeguard the women from being subject to exploitation. In 2016, a new bill was introduced regarding surrogacy regulation that recently gathered majority support in the Lok Sabha and is now waiting to be endorsed by the Rajya Sabha. Situating the essential problem in the ‘commercial’ element of the process, the Indian state is determined to make surrogacy permissible only if performed altruistically. In attempting to shut down what it perceives to be a degrading industry, the Bill decrees that only Indian women aged 25–35 years, with at least one existing child, and who are closely related to the intending couple are eligible to perform a surrogacy altruistically on their behalf. Any payment, reward or monetary incentive to the surrogate, her dependents or representatives is clearly forbidden; she may only receive medical expenses and insurance costs. The bill has also faced criticism because it does not allow homosexual, live-in couples, transgender and single parents to opt for surrogacy, thereby explicitly limiting the view of what a family should be and comprise in the eyes of the state, law and society. This also creates logistical problems as studies show that female relatives do not often voluntarily agree to act as surrogate mothers.

Elsewhere in Asia, Iran allows all categories of surrogacy and is a popular destination for infertile couples to go to from the Middle East. In Central Asia, though Kyrgyzstan is not a major “rent-a-womb” destination yet, with its strong legal protections, modern medical facilities, and women willing to be surrogate mothers, the surrogacy business is considerably high. After getting a boost from a 2015 law that defines and protects the rights of the surrogate mother, the baby, and the adopting couple, new fertility clinics have sprung up in this Central Asian state and surrogacy has flourished. Societal constraints do existas it is not accepted that a woman should carry a child who is not her husband’s,consequently the entire process is generally carried out behind closed doors.

In the Southeast Asian countries, the process of surrogacy often happens through crossing one border to another where the parents (from a nation that does not allow the process) contact a broker from their neighbouring country who would reach out to a medical clinic in the 3^rd country and get a surrogate mother from the 4^th country. In such cases, there is a huge danger to the surrogate mother’s life as she is out of sight,secluded with other surrogate mothers,to prevent her from getting caught.

In 2015, Thailand passed a new law strictly limiting surrogacy to Thai couples, and banning commercial surrogacy altogether with offenders facing up to 10 years in prison. This was due to the extraordinary case of an Australian couple whose surrogate mother had twins, with one of the babies being born with Down syndrome. The couple took one child, leaving the baby affected with Down syndrome with the surrogate mother in Thailand.
The business then moved over the border to Cambodia for a while which became a booming hub for surrogacy, especially for older Chinese couples who wanted another child after China had lifted its “One child” policy. Cambodia still has brokers, and eligible young women, skirting the ban for a price.

Since then it has largely moved to Laos, where there is as yet no specific regulation for surrogacy. At some point Laos too will probably tighten its regulations. But the yearning for children in those who cannot conceive naturally, and the globalisation of the “wombs-for-rent” business, makes it inevitable that when that happens it will simply move to another poor country without adequate laws and regulation which oversees the entire process and protects the parties from facing any exploitation while simultaneously also allowing women rights over their own bodies as well as allowing them to opt for surrogacy as a form of employment if they wish to.

Sukanya Bhattacharya

Intern

AGA