Decriminalizing Payments Made to Surrogates: Lessons for India from Canada

Abstract

This thesis analyzes surrogacy regulation and practice in Canada and India and examines how both altruistic and commercial surrogacy have the potential to harm and exploit surrogates. I argue that money might not be the sole reason (or even the main reason) for the potential for harm and exploitation in surrogacy to become a reality. The main concern, in my view, is the regulatory approach of both countries, which fails to adequately address the myriad ethical and legal issues involved in surrogacy. I suggest policy recommendations for regulated commercial surrogacy for India, informed by the lessons learned from the Canadian and Indian surrogacy experiences. The objective of the recommendations is to safeguard and promote the interests of surrogates and prioritize their informed consent. In Chapter 1 of this thesis, I provide a brief introduction to the practice of surrogacy and reasons for its popularity in the modern world. With the help of emerging empirical scholarship from the developed world, I challenge the unsubstantiated concerns about surrogacy and lay down the foundation for my argument. In Chapter 2, I discuss how, despite Canada having a heavy-handed law on surrogacy, the law has been ineffective and has inadvertently given rise to the potential for exploitation of surrogates. In Chapter 3, I discuss the development of Indian surrogacy law and unpack the complex realities of Indian commercial surrogacy practice. I argue that India should permit regulated paid surrogacy as it will minimize the potential for harm and exploitation of surrogates. Ultimately, in Chapter 4, I provide policy recommendations for a regulated commercial surrogacy regime in India. My main recommendation is for a robust system of oversight and enforcement aimed at safeguarding surrogates from exploitation.