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them to the clinic. The clinic would not have the sur-
rogate’s medical history and would not require the
surrogate to live at the clinic during the pregnancy.
“It was very important to us that the surrogate
lives at the hospital,” Gambhir says. “We would be
worried about how she is staying, her nutrition. Also,
she can say, ‘Sorry, ma’am, I’ve aborted the child.’ ”
They eventually decided to go ahead with surro-
gacy at Akanksha, impressed with how the hospi-
tal was run. The procedure was costly—$2,689 for
the egg retrieval, and an additional $18,823 for the
surrogacy—and the Gambhirs had to dip into their
savings to pay for it. The surrogate did not become
pregnant on the first try, but they were back three
months later, hoping for a better outcome.
“To people who say that this is a baby factory, they
should see the couples who are suffering, unable to
have a child,” Gambhir says. “If they want their own
genetic baby, what will they do?”
As IndIA struggles to recover from a brutal sec-
ond wave of the COVID-19 pandemic, the amended
surrogacy bill that awaits consideration by the upper
house of Parliament has been put on the back burner.
But the new restrictions have already become a
flash point in a broader culture war under way in
India around the rights of women and LGBTQ peo-
ple. Activists point out that the surrogacy bill limits
access to those currently or formerly in heterosexual
marriages, while other legislation in India has recog-
nized the rights of live-in couples, single people and
LGBTQ people. “If the legislation passes in its cur-
rent form, it will be challenged before the Supreme
Court,” says Aneesh V. Pillai, an assistant professor of
law at Cochin University who completed his Ph.D. re-
search on the legal framework of surrogacy in India.
He believes the Supreme Court will object to the law
because it violates the constitutionally guaranteed
right to equality—though the court has, in recent
years, rarely ruled against the central government.
Same-sex sexual relations were decriminalized
in 2018, but the government continues to oppose
same-sex marriage, telling the high court in Febru-
ary that the “Indian family unit concept... neces-
sarily presuppose[s] a biological man as ‘husband,’
a biological woman as ‘wife’ and children born out
of union.” As recently as 2016, India’s Minister of
External Affairs Sushma Swaraj declared that allow-
ing gay people to have a surrogate child “doesn’t go
with our ethos.”
“The Indian constitution talks about equality,
but this legislation does not even consider that,” says
Sarojini N, the Delhi-based activist. “Social morality
has been put at the center. It is definitely discrimi-
natory toward LGBT people and people not in the
institution of marriage.” While single women would
still be allowed to adopt in India under other legis-
lation, she notes, they would not be allowed access
to surrogacy unless they are widowed or divorced.
If the ban goes ahead and is upheld by the court,
experts are concerned it will create an underground
economy with worse conditions, where paid surro-
gacy would continue unregulated.
This would leave the surrogates with no protec-
tions at all and unable to demand safeguards. Clin-
ics and intended parents could circumvent the law
by using cash transactions or inflating the costs of
medical expenses or insurance on paper to conceal
compensation for a surrogate. And while estab-
lished clinics in larger cities might stay away from
surrogacy under these circumstances—Patel says she
would opt to close her hospital’s surrogate ward to
avoid being a party to any transactions that were not
aboveboard—more rural clinics might continue to
operate unregulated. That’s how things have played
out in other countries. Despite commercial surro-
gacy being banned in China, the New York Times
estimated that more than 10,000 children a year are
born there through that process.
If all goes well for Macwan, whether or not com-
mercial surrogacy is banned will not directly affect
her. Many of the women she has met at Akanksha
have been surrogates before, but she hopes she will
never be in such dire need again. She misses her son,
who lived with her at the hospital until discomfort
from the pregnancy made it difficult for her to look
after him. She speaks to him by phone every day, but
finds it hard to carry him when he visits because she
recently had to get cervical stitches to ensure that she
does not deliver prematurely. She wishes she could
leave the hospital premises, but is worried about
health complications that might occur while away.
Last year, she got engaged to Vivek, a young man
who worked alongside her at the garment factory.
She is glad he is open- minded and was supportive
of her decision to become a surrogate. They plan to
get married after she delivers the twins, but do not
want more children of their own. Yet she does not
regret her decision to be a surrogate.
“Someone is not able to have a child, I am able
to get pregnant, I am giving them a child,” she
says. “They have a need. We also have a need. So
what is wrong with this work?” —With reporting by
Madeline Roache/london □‘BANNING HASN’T WORKED
FOR DRUGS OR ALCOHOL.
HOW WILL IT WORK FOR
SOMETHING WHICH IS SO
HUMAN?’ —Dr. Ranjana Kumari, Centre for Social Research