“The whole of Shesha, which is my abode, will become an embryo in Devaki’s womb which you shall transplant to Rohini’s womb.” (Bhagwat Purana, 10.2.8)
The Select Committee on the Surrogacy (Regulation) Bill, 2019 submitted their report to the Rajya Sabha on 5th February 2020. In this report, the proposition of reconsidering the commercial aspect of surrogacy was put forward, while highlighting the possible backlash the surrogates may face, if chosen otherwise. This proposition was good to no avail. One such backlash is the likelihood of the surrogacy industry moving underground. This contention was also put forward on multiple occasions; However, no heed was paid to it. Ergo, the following article shall look into this contention.
A. PLAUSIBILITY OF AN UNDERGROUND MARKET
“If Parliament agrees with Brazier and denies women the opportunity to be financially rewarded for surrogacy services, an unregulated surrogacy with all the evils attendants upon such underground activities will emerge.”
The gravest of all repercussions of not commercializing the surrogacy front in India is the plausibility of an underground surrogacy market. It is commonly understood that, upon the prohibition of sale and purchase of a product or a service by the government, transaction for such product or service may shift underground, i.e., beyond the spectrum of legal scrutiny and takes the form of a black market. For example, sale and purchase of drugs or stolen goods.
The example of Female Genital Mutilation may not serve as the perfect illustration, but nevertheless, it would portray the continuation of horrors faced by women. In Kenya, even after “banning” the practice, rather than strictly regulating it, the government still struggles to compete with it as the practice continues to survive and goes underground. Within the Indian perspective, illegal abortions which out number the legal ones may serve as another example.
Now, herein, the argument of an underground surrogacy market has two aspects: First, the abuse of legal rights of a surrogate; and second, the inability of a surrogate to secure legal remedy should these rights get abused. In a structure defined and regulated by law, the abuse may exist, but, relatively speaking, it would be lesser compared to one with no structure at all. And that is the situation at hand. The abuse will be rampant. If surrogacy practices were not up-to-the-mark prior to the ban, there is an exponentially high probability that upon going underground, they would go completely hay-wire with no rules and restriction whatsoever. A surrogate would all lose her rights. At present, altruistically speaking, under the proposed bill, a surrogate has the right to get insurance coverage for her labour, she can choose the intending parents, and get an abortion.
In the underground practice, the surrogate will not be covered with insurance, so any complications which may arise out of the surrogacy, and the expenses thereunder, shall have to be borne by the surrogate. Additionally, since we’re at the point of monetary benefits, she may get paid a menial compensation, or possibly, no compensation at all. It isn’t hard to imagine that the bargaining power of the person in charge of this process would be high (as not governed by law) and they may try to exploit the surrogate, or even completely abandon her with no compensation at all. She may also get coerced into choosing the intending parents and delivering the child against her will. Lastly, the surrogate may also not get the option of aborting the child should complications arise, therefore severely affecting her health, and in worst case scenarios, even death. It is further noteworthy to point out that a regulated market can enforce the minimum standards of living, or as in this case, standards for a safe commercial surrogacy practice, i.e., proper use of drugs and procedures related to surrogacy. But the moment there is a ban on the process altogether, use of substandard drugs or haphazard procedures would degrade the process and put the surrogate at risk.
However, this is not even close to the all-out exploitation which the surrogates may witness. Women in their teenage, or worst, underage girls may also get pushed into this practice. Prostitution has already seen this happening and can likely happen in surrogacy too. Lastly, the inability of surrogates to secure legal remedy would further deteriorate their condition. There would be no redressal if injustice happens; therefore, the commercial surrogacy market, which was earlier loosely regulated, would now become a misadventure for surrogate mothers without any remedies.
While an underground surrogacy market is one of many repercussions that may befall the surrogates of India, it does indeed show the dark dungeon this practice might end up in. A black market, in the most literal sense, is a place of chaos and the unchecked abuse of law. It works beyond the basic fibre of society, and activities thereunder go unnoticed. (until caught) The ‘purity’ & ‘altruism’ which a surrogacy transaction holds would lose its value, and it would become a transaction void of any legal countermeasures, morale, or thought. A service trading in human life without the grace to deal in it. A truly reprehensible situation. Life of the surrogate would be at stake, quite literally. And should things go sour, the injustice would be rampant, to say the least. Surrogates would become sufferers of a non-existent wonderland, and it is not a morally acceptable alternative to save exploitation of surrogates by banning commercial surrogacy all together. In fact, this decision would be counterintuitive to the vision of the proposed bill. A glaring example of this could be seen in China where the blackmarket for surrogacy is on the boom, but the condition of surrogates is not. Perhaps Dr Kaberi Banerjee, a New Delhi fertility specialist could pitch into this as she contenders, “Commercial surrogacy is a win-win for both the couples and the surrogate…take any lady who could come to me to be a surrogate — what would she have otherwise done? Come to my house and wipe utensils and mop floors for peanuts? Where is the government then to say she is exploited? ”
 Parliament of India, 2020. Report of the Select committee on The Surrogacy (Regulation) Bill 2019. <https://www.prsindia.org/sites/default/files/bill_files/Select%20Comm%20Report-%20Surrogacy%20Bill.pdf> accessed 12 October 2020
 Id., at pg. 9, 10 & 12.
 Michael Freeman, ‘Does surrogacy have a future after Brazier?’ (1999) 7(1) Medical Law Review <https://academic.oup.com/medlaw/article-abstract/7/1/1/982491> accessed 13 October 2020.
 Manjari Rammohan, Parinita Kare, ‘Economic Analysis of Commercial Surrogacy’ (2016) 2(4) Journal of Legal Studies and Research <http://thelawbrigade.com/wp-content/uploads/2019/05/Parinita-Manjari.pdf> accessed 13 October 2020.
‘Perspectives of Black Market V.3’ Indiana University <https://iu.pressbooks.pub/perspectives3/front-matter/introduction/> accessed 12 October 2020
 Kimberely D. Kraweick, ‘A Woman’s worth’ (2010) 88(5) North Carolina Law Review <https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=4444&context=nclr> accessed 12 October 2020.
 Abdullahi Mire, ‘’Butchered’: The Kenyan FGM clinic serving Europeans’ AlJazeera (Kenya, 23 March 2020) <https://www.aljazeera.com/indepth/features/kenyan-fgm-clinic-serving-europeans-200317161309188.html> accessed 12 October 2020
 Kanu Sarda, ‘Illegal Abortions Rampant In India’ The New Indian Express (New Delhi, 29 July 2018) <https://www.newindianexpress.com/thesundaystandard/2018/jul/29/illegal-abortions-rampant-in-india-1849953.html> accessed 11 October 2020
 Supra note 3.
 Supra note 1.
 The Surrogacy (Regulation) Bill, 2019, Section 4, Clause 3, Subclause (a),
 The Surrogacy (Regulation) Bill, 2019, Section 4, Clause 3, Subclause (b)
 The Surrogacy (Regulation) Bill, 2019, Section 10 read with Section 48, subsection 2, clause (i)
 Tejvan Pattinger, ‘Underground Economy – definition, problems and causes’ Economics.help <https://www.economicshelp.org/blog/1822/economics/underground-economy/> accessed 13 October 2020
 TOI, ‘’India becoming hub for child prostitution’’ (New Delhi, 30 January 2010) <https://timesofindia.indiatimes.com/india/India-becoming-hub-for-child-prostitution/articleshow/5514551.cms> accessed 14 October 2020
Michael Cook, ‘Chinese black-market surrogacy is booming’ Bio Edge (13 January 2018) <https://www.bioedge.org/bioethics/chinese-black-market-surrogacy-is-booming/12558> accessed 15 October 2020
 FT, ‘India surrogacy crackdown raises concerns’<https://www.ft.com/content/866643bc-7b19-11e6-ae24-f193b105145e> accessed 15 October 2020
Author: Sanchit Sharma