Saturday 10 December 2016

Demonetisation: A Thunderbolt in Search of a Target


Enough has been written about the sudden demonetisation that was sprung on the country by Prime Minister Modi on 8 November 2016. The pros and cons of it have been discussed in detail over the last month and I have nothing more to add beyond what has already been stated by first-rate minds in India and abroad. Economists of impeccable reputation have commented on it and have warned that the move is likely to hurt the economy in the short run. See, for example, commentaries by Amartya Sen,[1] Kaushik Basu,[2] Paul Krugman,[3] Larry Summers,[4] Kenneth Rogoff,[5]  and Gita Gopinath[6] among others. In a major shift in his opinion, Deepak Parekh now believes that demonetisation will derail the Indian economy.[7] Even Arvinda Pangariya, Vice-Chairman Niti Ayog (formerly the Planning Commission) has acknowledged that there will be short-term costs and that the process of demonetisation has been poorly managed.[8]
To be fair, there are others – Bibek Debroy,[9] Surjit Bhalla[10] and Bill Gates (though he changed his mind pretty quickly[11]) - who have supported the move by the government. In fact, Bibek Debroy has taken to task the economists who have had the temerity to criticize demonetisation: “They (i.e. economists living abroad) base their understanding essentially on reading English newspapers. Otherwise, how would they know? English language newspapers understood many things wrongly”.[12] So, the economists are wrong because they do not live in India. Alas, this is the usual ploy of attacking the critics when the criticism cannot be effectively answered.
In all the sound and fury surrounding demonetisation, the silence of one economist has been deafening: the government’s own Chief Economic Advisor (CEA) Arvind Subramanian. When the government has been struggling to answer the criticism levelled against demonetisation, would it not be obvious to field its CEA to respond to the critics? But he has been missing in action.[13] Perhaps the government does not trust him enough or perhaps, invoking what Subramanian Swamy had said about Raghuram Rajan,[14] the CEA does not know enough about India since he is not Indian enough.

Searching for a Rationale of Demonetisation
Curbing Black Money
During the course of the last month, the objectives of the demonetisation drive have been changing continuously. The initial focus was on curbing black money. However, it soon became apparent that this was unlikely to reveal a large amount of black money since only about 6% of such money is kept in cash. Moreover, the generation or flow of black money has remained unchecked and all that demonetisation could, optimistically, hope to achieve was extinguish only a small fraction of the huge accumulated stock of black wealth. Consequently, it is not at all surprising that suspicious amount of money in the form of new currency notes have been recovered during tax raids.[15]
The above criticism of demonetisation is reinforced by a recent statement of the Revenue Secretary in the Finance Ministry who has stated that the government expects all scrapped Rs 500 and Rs 1,000 notes to come back to the banking system which then raises questions about the very purpose of the hugely disruptive demonetisation exercise.[16] It may be remembered that the government expected that, of the Rs 15.4 lakh crore of scrapped money, 30 per cent or Rs 4.5 lakh crore was black (i.e. this money would not find its way back to the banks). It is now being accepted that at most one-third of the Rs. 4.5.lakh crore may be black money and, with the deadline for depositing now defunct notes in banks still some weeks away, even less black money is likely to caught.
Cashless Economy
As the hollowness of demonetisation as a means of controlling black incomes has become apparent, a wonderful world of cash-less economy has been dangled in front of the country. The Prime Minister has exhorted rural audiences in his election rallies in the Punjab to think of their mobile phones as banks.[17] Given that much of rural India does not even have access to banks, this seems like a cruel joke. While access to banks has increased with the Jan Dhan accounts opened during the last two years, the percentage of persons in rural areas without bank accounts is still significant.[18] Moreover, many of the Jan Dhan accounts have a zero-balance which suggests that the size of unbanked population may be declining but the numbers of those actually using banks continues to remain low. But a sneaky game is afoot: banks have been depositing one rupee into the zero-balance accounts so as to reduce the number of such accounts![19]
A cash-less society is a chimera which does little to alter the depressing reality where mere access to banks is still a challenge, leave alone usage of mobile banking and plastic money. This is not the criticism of a technophobe but rather a plea to recognize the reality of the society we live in. Before one talks of cashless society, it is important to ensure the spread of banking which, if pursued relentlessly, is likely to meet with much greater success in curbing black money. One cannot leapfrog into cashless society from one which still conducts 68% of its transactions in cash.[20] Forcing people to do so requires coercion and does not sit well with democracy. Cultures and habits of the populace do change but certainly not at the behest of a government diktat.
Reduction in Violence in Kashmir
The desperation of the government to see some silver lining to the disaster of demonetisation became starkly apparent when the Defense Minister, Manohar Parrikar, made the fantastic connection between monetary policy (i.e. demonetisation) and the violence in Kashmir.[21] Parrikar’s absurd claim cannot be taken seriously by anyone who has studied the Kashmir problem.[22] The incidence of stone-throwing had been exhibiting a declining trend even before the announcement of demonetisation: in July 2016 there were 820 incidents; in August, there were 747; in September, there were 535; in October, this had fallen sharply to 157. This pattern has merely continued in November and would have done so quite independently of demonetisation. It was not monetary policy that did the trick but time-tested policing as stated by a police officer: “We have detained the provocateurs of violence and those people who were instigating the youth to pelt stones. All these measures are showing the results”.[23] By attributing the decline in violence to demonetisation, the Defense Minister does great disservice to our police who have brought under control one of the worst episodes of violence in Kashmir.
Putting the Opposition on the Mat
As demonetisation has spun out of control and is not the surgical strike that it was claimed to be, the government and the BJP have gone on an offensive. How else does one explain the impossible claim of Amit Shah, President of the BJP, that black money will vanish from India by the end of 2016?[24] Shah has also been tasked with demolishing former Prime Minister Manmohan Singh stinging criticism of the government in Parliament when he referred to demonetisation as organized loot and legalized plunder.[25] The BJP and its acolytes have reacted in the only way they can: by attacking the critic but leaving the criticism unanswered. It was left to Amit Shah – using of combination of half-truths and downright lies – to try and do a demolition job on Manmohan Singh.[26] While there is no attempt to answer the criticism, Shah seeks to demolish Manmohan Singh’s stature as an economist by claiming that a non-economist Prime Minister before Singh (i.e. Atal Bihari Vajpayee) and tea-seller Prime Minister after Singh (i.e. Narendra Modi) had delivered better growth to the Indian economy. Such nonsense is music to the ears of the devotees (bhakts as they are derisively called) of the BJP for whom facts and truth are an inconvenience to be ignored or changed at will. However, those who have the slightest respect for facts and truth will recognize the fake news that Shah is purveying.
Shah said that, when Vajpayee demitted office, India’s growth rate was 8% while at the end of Singh’s term in office it was 4%; ergo, Vajpayee managed the economy better. I see absolutely no reason why one should focus only on one specific year in the term of a government? Perhaps because it helps to advance a fake narrative? The chart below shows a comparison between full terms of Vajpayee’s government (NDA-1) and Singh’s governments (UPA-1 and UPA-2). Incidentally, the data I use is verifiable and sourced from one of the most respected institutions in the country, namely, the Reserve Bank of India.[27]



The average for the entire term of NDA-1 is 5.88% per annum; for UPA-1, it is 8.43% per annum; and for UPA-2 (despite the slowdown in the last two years) it is 6.88% per annum. It should also be mentioned that, despite the worst world-wide recession in about a century during 2008-09 to 2010-11, the UPA, not only protected the Indian economy from its ill effects but, in fact, delivered growth rates of 6.72%, 8.59% and 8.91% during those years. It is only in 2011-12 that the Indian economy began to run out steam to internal reasons (such as, policy paralysis) and pressures from the weak performance of the global economy. But, of course, for the committed supporters, such facts don’t matter. Isn’t it amazing how blind support is so similar in the two largest democracies – India and the USA – in the world? In both countries, there has been the disturbing tendency for uncritical supporters accept fake news as truth and reject truth as fake.
Shah further stated that the NDA-2 government, over its two completed years in office, had delivered growth of around 7.5% per annum which is better than the 4% growth rate that it inherited. Anyone with a rudimentary knowledge of arithmetic knows that the 4.74% rate that was actually achieved in 2013-14 (see Figure 1) is rounded up to 5% and not rounded down to 4%! But that is a minor travesty. The bigger one is the fact that the way of measuring GDP has undergone a change from January 2015[28] and this has been ignored by Amit Shah. The changed methodology has been used to report a new series of GDP from 2011-12 onwards. As a result, for the years, 2011-12, 2012-13 and 2013-14 (the last three years of the UPA-2) two different sets of GDP data are available. Hence, while making comparisons, it is important to select GDP data that are comparable. Specifically, when comparing the GDP data for the last three years of UPA-2 with the first two years of NDA-2, one must use the new series of GDP introduced in 2015.
In view of the above caveat regarding comparison, the rate of growth of around 7.5%  under NDA-2 as per the new methodology cannot be compared with rate of 4.74% rate in 2013-14 (last year of UPA-2) as per the old methodology. A cavalier comparison, as done by Amit Shah, would be like comparing the weight of one person in pounds and that of another in kilograms and using these weights to decide who is heavier. The correct comparison – using the same methodology to measure GDP during the two regimes – is given in the chart below.

Now, the comparison between the rates of growth in the last year of UPA-2 with that of the two years of NDA-2 is meaningful. Note that the growth rates during the last two years of the UPA-2 are higher as per the new methodology. The rates were 4.47% (2012-13) and 4.74% (2013-14) as per the old methodology (see Figure 1) while, as per the new methodology, the rates are 5.62% and 6.64% (Figure 2). Given this, Amit Shah’s correct comparison should have been between the rate of growth of 6.64% in 2013-14 with 7.24% in 2014-15. It is now obvious that the difference between the two growth rates is not as bad for the UPA-2 as has been made out by Shah and other ill-informed critics.
It is certainly true that, even as per the new methodology, the performance of UPA-2 did drop in the last two years of its rule but that certainly does not qualify, by any stretch of imagination, as a destruction of the economy, as has been claimed. For a more detailed discussion, readers are invited to have a look at an earlier post of mine entitled “Did the UPA Destroy the Economy? A Counterfactual Exercise”.[29]
Long Term Benefits of Demonetisation
As the demonetisation story has unraveled and there seems to be no sign of any immediate benefit, the spin doctors have pulled out the allure of long term benefits out of the bag of tricks. Finance Minister Arun Jaitley has claimed that “When you are in a cusp of history and you look at the long-term impact of these steps which are going to be taken, I think India is going to become a society in the long term with a certainly better GDP, cleaner ethics, a cleaner economy”.[30] So, what happened to Modi’s tearful cry from the heart which asked for forbearance for 50 days, after which all pain would vanish? As the short-term benefits (if any) have been overwhelmed by the huge short-term costs, the government has thought it best to dangle a vision of paradise in the distant future – since this can never be verified, anything good that happens to the Indian economy in the future can be attributed to demonetisation.
Long term growth requires consistent, stable and predictable policy-making which then allows private businesses/producers to plan for the future. A severe disruption to the system, like demonetisation, creates doubts in the minds of producers about the policy regime likely to prevail in the future. The natural reaction of risk-averse producers is to postpone crucial investment decisions awaiting clarity regarding the direction policy is likely to take. Over the last two years, private investment has been sluggish at best and demonetisation is likely to act as one more stumbling block for investment decisions. Anyone familiar with the Solow growth model is aware of the importance of private investment in determining growth in an economy. Hence, any disruption that damages the confidence of private players to invest cannot but lead to a drop in investments and, hence, in growth rates in the future.
It is true that numerous cross-country studies have revealed that economies that are low in corruption have been found to perform better.[31] However, demonetisation has been seen to be anything but an anti-corruption measure. The Prime Minister’s threat of letting loose tax officials to unearth black wealth will achieve nothing apart from causing immense turmoil to the lives of law-abiding citizens while those with illegal wealth would have squirreled it away from the reach of tax officials. Controlling corruption requires changing the incentive structure for generating illegal incomes. This can happen only when bureaucratic controls are loosened, tax administration is simplified and ease of doing business is improved. None of the measures on display so far will have the slightest impact on corruption and, hence, no beneficial impact on India’s growth.

Summing Up
Having examined the various possible rationales that have been trotted out to justify the demonetisation unleashed by the Prime Minister and found little evidence to back these up, the question remains as to why this step was taken at all? How could a politician, as astute as Narendra Modi, have taken such a momentous step without weighing up the costs of this decision and the damage this might do his and his party’s popularity? I am not in slightest suggesting that the NDA’s hold on political power is about to be threatened. With the opposition so completely fragmented and the Congress in thrall of an inept leader-in-waiting, there is little danger of any meaningful challenge to the NDA. But, even for a leader confident about his position, there is a constant need to keep playing the messianic role that he has arrogated for himself. As the months have rolled on and half the term of the government has been completed, there have been no eyeball-grabbing achievements that the BJP can boast of to keep the BJP supporters enthusiastic and galvanized for the 2019 elections. Hence, something dramatic was required. The mundane task of governance was clearly not enough to keep intact the popularity of the leader. For example, the perfectly admirable task of improving the ease of doing business in India was taking too long to show dramatic results and hardly made for histrionics at public meetings. India’s position in the World Bank’s Ease of Doing Business has certainly improved since 2014 but it continues to languish at a rank of 130 among 190 nations.[32] Changing the sclerotic bureaucratic structure is not easy and is unlikely to show results in a hurry. Possibly, realizing that the hard grind of governing a country was not “sexy” enough to enthuse the fanatical supporters of Modi, a dramatic gesture was needed and it arrived as a thunderbolt on 8 November 2016. And, certainly, in the days that immediately followed the announcement, whoops of joy and enthusiasm filled the air as the credentials of a muscular, risk-taking leader were reestablished.
As things stand, the costs of demonetisation seem to far outweigh the benefits, if any. Will the schadenfreude at the discomfiture of those with illegal money, experienced especially by the poor, continue despite the immense hardship and the livelihoods that have been put at peril? That is something that the future will reveal but we can be sure that the innovative and imaginative spin doctors of the BJP will have their hands full for some time to come.




[1] http://www.thehindu.com/news/national/Amartya-Sen-terms-demonetisation-a-despotic-action/article16730675.ece
[2] http://www.nytimes.com/2016/11/27/opinion/in-india-black-money-makes-for-bad-policy.html
[3] http://www.livemint.com/Politics/6WQRkoCktgAJdagFSkcIVN/Demonetisation-may-not-deliver-long-term-benefits-to-India.html
[4] http://thewire.in/81659/larry-summers-on-demonetisation-india/
[5] http://blog.press.princeton.edu/2016/11/17/kenneth-rogoff-indias-currency-exchange-and-the-curse-of-cash/
[6] https://www.project-syndicate.org/commentary/india-tax-evasion-demonetisation-by-gita-gopinath-2016-11
[7] http://www.news18.com/news/business/in-major-u-turn-deepak-parekh-says-demonetisation-has-derailed-economy-1320467.html
[8] http://www.financialexpress.com/economy/demonetisation-liquidity-issues-to-stay-for-three-months-says-arvind-panagariya/456488/
[9] http://www.business-standard.com/article/economy-policy/bibek-debroy-counters-ex-pm-manmohan-singh-on-demonetisation-116112600005_1.html
[10] http://indianexpress.com/article/opinion/columns/demonetisation-of-rs-500-rs-1000-notes-new-rs-2000-note-big-bang-or-big-thud-4383065/
[11] http://www.business-standard.com/article/economy-policy/bill-gates-makes-a-u-turn-on-demonetisation-116111800040_1.html
[12] http://indianexpress.com/article/india/india-news-india/economists-criticism-of-demonetisation-not-fact-based-niti-aayog-member-bibek-debroy-4397845/
[13] http://thewire.in/83452/chief-economic-adviser-arvind-subramanian-missing-action/
[14] http://www.ndtv.com/india-news/remove-raghuram-rajan-subramanian-swamy-writes-to-pm-narendra-modi-1407047
[15] http://www.ndtv.com/bangalore-news/bengaluru-raids-reveal-5-crores-mostly-in-new-notes-also-a-lamborghini-1632774
[16] http://economictimes.indiatimes.com/news/politics-and-nation/all-pain-little-gain-demonetisation-math-does-not-add-up/articleshow/55854776.cms?prtpage=1
[17] http://www.newindianexpress.com/nation/2016/nov/25/pm-modi-pitches-for-mobile-banking-1542567.html
[18] In 2015, it was as high as 50% which would have come down in 2016. https://rbi.org.in/Scripts/AnnualPublications.aspx?head=Basic%20Statistical%20Returns
[19] http://indianexpress.com/article/business/banking-and-finance/how-banks-cut-their-zero-balance-jan-dhan-accounts-one-rupee-trick-3028190/
[20] http://www.business-standard.com/article/economy-policy/infographic-68-of-transactions-in-india-are-cash-based-116111400495_1.html
[21] http://timesofindia.indiatimes.com/india/Demonetisation-has-led-to-decline-in-separatist-instigated-violence-in-the-Valley-MHA-sources/articleshow/55419257.cms
[22] http://thewire.in/81378/kashmir-stone-pelting-demonetisation/
[23] http://thewire.in/81378/kashmir-stone-pelting-demonetisation/
[24] http://economictimes.indiatimes.com/news/politics-and-nation/by-year-end-india-wont-have-black-money-amit-shah/articleshow/55833192.cms
[25] http://www.ndtv.com/india-news/monumental-management-failure-dr-manmohan-singh-on-notes-ban-1629571
[26] http://aajtak.intoday.in/video/agenda-aaj-tak-amit-shah-in-talk-with-rahul-kanwal-1-900256.html
[27] https://www.rbi.org.in/Scripts/AnnualPublications.aspx?head=Handbook%20of%20Statistics%20on%20Indian%20Economy
[28] http://mospiold.nic.in/Mospi_New/upload/Changes%20in%20Methodology%20NS%202011-12%20June%202015.pdf
[29] http://ajitkarnik.blogspot.ae/2014/06/did-upa-destroy-economy-counterfactual.html
[30] http://www.thehindu.com/business/Economy/%E2%80%98Benefits-of-demonetisation-to-accrue-in-long-term%E2%80%99/article16773645.ece
[31] ftp://ftp.iza.org/dps/dp5334.pdf
[32] http://www.doingbusiness.org/rankings

Tuesday 6 September 2016

Ban or Regulate? Commercial Surrogacy in India

Introduction
The Ministry of Health in India has recently announced that the Government of India proposes to ban surrogacy for commercial purposes.[i] Only altruistic surrogacy will be permitted where the surrogate mother is a “close relative” of the intending parents. Further, surrogacy will be permitted only to Indian citizens residing in India; Non Resident Indians and persons holding Persons of Indian Origin (PIO) cards have been excluded. Given the nature of the transactions in the surrogacy market, Government intervention in the market was, indeed, required since, at the moment, the only guidelines available are those of the Indian Council of Medical Research.[ii] However, these guidelines have not been codified into law and, hence, are not legally enforceable.
There are various reasons why commercial surrogacy has come under a cloud and these are probably the reason why the Government of India proposes to ban it. These reasons are related to the interests and welfare of the surrogate mother (SM), the intended parents (IP) and the unborn child.[iii] I would like to focus on the issues related to the SM. The main fears are: (1) exploitation by third parties, (2) lack of fully-informed consent and (3) threats to the mother's mental and physical health during and after the pregnancy. Each of these issues is important and needs careful examination. The question also needs to be asked whether the proposed ban on commercial surrogacy will alleviate or exacerbate these concerns. In addition, there are concerns about commodification of women (akin to prostitution), baby-selling and similarity with organ sales. I will not touch on these but direct the reader to Richard Posner[iv] and Aristides Hatzis[v] who effectively demolish these arguments against surrogacy.
Exploitation
The exploitation argument needs to be considered seriously. A particularly strong critique of the Indian surrogacy market on this ground comes from Kristine Schanbacher who believes that the market completely fails to uphold the principles of medical ethics.[vi] In the surrogacy market, the potential SM enters into a transaction with the IP. Economics states that any market transaction that that is completed necessarily leads to an improvement in welfare. The buyer believes that (s)he has received more in value than has been paid for the product or service and the seller earns more than it has cost to produce the product or service. An important condition for the improvement in welfare is that both parties participate in the transaction voluntarily; absent this and the transaction is nothing but exploitation and theft. We have to ask the question whether the SM enters the transaction as an independent economic agent, freely pursuing her own interests or is she coerced into the transaction. This coercion may take place either due to pressures from the IPs but, more likely, due to pressures from the agency managing the surrogacy. More insidiously, exploitation may occur due to the economic circumstances of the SM and, hence, her weaker bargaining position relative to the wealthier IPs.[vii] The lure of compensation, relative to the income of the SM, may “force” her into the transaction. Countries which have banned commercial surrogacy have taken the paternalistic position of protecting SMs from such exploitation, e.g. Canada and the UK (altruistic surrogacy only), and Greece (no compensation beyond out of pocket expenses).[viii] With opportunities for surrogacy shrinking elsewhere in the world, the $400 million Indian market[ix],[x] will likely only expand further.
Let us explore the economic status of the women who agree to be SMs. There isn’t a large sample study in this area of research, possibly because the nature of information sought precludes the possibility of carrying our large surveys. Most researchers have recorded oral histories of SMs.[xi],[xii] Amrita Pande’s study reports that the median (monthly) income of the families of SMs was Rs. 2500. She writes “If we compare that to the official poverty line in India, 34 of my 42 interviewees reported family incomes below or around the poverty line”.[xiii] Further, “the money earned through surrogacy was equivalent to almost five years of total family income especially since many of the SMs had husbands who were either in informal contract work or unemployed”.[xiv] Sheela Sarvanan also finds economic distress as an important reason that motivates potential SM.[xv] This quote from an SM in Sarvanan’s study will cause anguish to any sensitive individual “This process is so distressing that I would not have done it even if someone paid me 10 times the remuneration, had I been well-off, but I am so desperate (for money) that I would do it even if I was paid just one third the amount”.[xvi]

Clearly, SMs belong to vulnerable sections of the population and, even if they were not coerced by anyone, their economic status might have compelled them to enter the transaction. The question we have to ask is whether it is just surrogacy that they would have avoided if their economic circumstances were better. There exist many occupations – sweepers, scavengers (removal of excreta from pit latrines, though illegal, still takes place in India), and maids among others – that individuals would not do if better opportunities were open to them. Such jobs are necessarily taken up by those who lack educational qualifications or alternative employment opportunities. How many households in India have ever employed maids who had a college degree and could have easily found white-collar employment? Accidents of birth, lack of opportunities and poor choices trap individuals in many occupations that they would rather not take up. Surrogacy is no different from such occupations.

While I am convinced that economic circumstances motivate women to act as SMs, surprisingly, only a small minority reported that to be the case. Vasanti Jadva and others report that only one out of the 39 women interviewed by them stated that monetary compensation was a motivating factor, while 91% wished to help a childless couple.[xvii],[xviii] Should one believe that compassion trumps economic motivation for the respondents in the study? A more plausible motivation for entering into a surrogacy contract comes from a quote by an SM in Pande’s study: “I don’t think there is anything wrong with surrogacy. We need the money and they need the child. The important thing is that I am not doing anything wrong for the money—not stealing or killing anyone. And I am not sleeping with anyone”.[xix] Two conjectures may be made on the basis of the studies that have been carried out: One, while money is important, it may not be the sole motivating factor; two, the women seem to be exercising their choice and entering into surrogacy, viewing it as mutually beneficial transaction while being convinced about the moral correctness of their choice.

Informed Consent
Making meaningful, informed economic decisions must be distinguished from giving informed consent for surrogacy. The latter lies within the realm of the law and requires that potential SMs have the ability to understand complex legal documents. The very characteristics of the parties to the transaction brings into the picture asymmetries in the availability of information and in the abilities to process such information. The first barrier to this is the educational levels of the SMs. Pande reports that, barring one, none of her respondents had education beyond the school level and, at least, a few were illiterate: “The SMs have to sign a consent form that talks about their rights in the surrogacy contract but the form is in English, a language almost none of the SMs can read”.[xx] In these circumstances, it is very likely that the IPs and the agency managing the surrogacy would have superior education and economic resources which might be used to manipulate contractual provisions against the interests of the SMs.

Mental and Physical Health of SMs
Getting the SMs ready for pregnancy involves strong medical interventions and the “side effects of these medications can include hot flashes, mood swings, headaches, bloating, vaginal spotting, uterine cramping, breast fullness, light headedness and vaginal irritation”.[xxi] Probably, none of the SMs are fully aware of the extent of the medical interventions and their side effects, placing their faith in the doctor who deals with them.
 Ban versus Better Regulations
Having discussed the important issues related to surrogacy, the question that must be answered is whether banning surrogacy will protect potential SMs from exploitation? The problem with banning is that the activity being banned is, generally, forced underground. So long as there is value in a transaction, a ban will not extinguish this value and an illegal market will emerge to exploit the value of the banned transaction. In an imaginary world, one could claim that perfect policing and perfect enforcement would ensure that illegal surrogacy markets cease to exist.  But, in the real world, one cannot repose such faith in the omniscience and omnipotence of the regulatory State. If this were, indeed, true, illicit markets for alcohol would have long disappeared in the Indian states which have introduced prohibition. A ban on surrogacy markets will likely face a similar fate and it requires little imagination to realise that the interests and welfare of SMs will be even more threatened in the banned markets.
The alternative to banning is more effective regulation. Will better regulations protect the interests of all parties to the transaction, especially the SMs and the IPs?  Even with a well-established regulatory framework, it must be remembered that incompleteness of contracts could impose severe hardships on SMs and even IPs. Incompleteness of contracts refers to the inability to foresee all contingencies that may arise in a transaction as well as to specify the action that each party must take in each possible contingency. This inability arises out of the bounded rationality[xxii] [xxiii] of the parties to the contract. Problems arising out of the incompleteness of contracts are exemplified by a few well-known cases, for example, the case of baby Manjhi;[xxiv] the case of Baby M;[xxv] and the case of the baby with disabilities.[xxvi] In addition, one must guard against opportunism – such as lying, cheating as well as incomplete or distorted disclosure of information – as one more obstacle to writing complete contracts. All of these manifestations of opportunism are likely to be present in the transaction that a SM would have to enter into. Guarding against such incomplete contracts and providing succour to aggrieved parties would be better served, not by banning surrogacy markets, but through remedial action available under better regulation.
 Summing Up
Despite all the problems and disadvantages that might be faced by the SMs in the surrogacy market, I view banning surrogacy as an instance of the government abdicating its responsibilities towards Indian SMs and leaving them to fend for themselves in the underground market that will inevitably emerge. What should the government do in such a situation? Here are a few preliminary thoughts for regulating the surrogacy market:
·         The government, with all the legal resources at its command, must draw up a model surrogacy contract that must be used in every surrogacy contract. Given the problems with writing complete contracts, such a model contract may also be incomplete but, at least, not willfully so.
·         A minimum payment must be determined for the SM. The entire payment from the IPs must be placed in an escrow account at the time of signing the contract.
·         Given the widely-touted spread of the Jan Dhan Yojana[xxvii], money in the escrow account should be transferred, as per a predetermined schedule, to the SMs bank account with the final payment being made after the handover of the baby.
·         Details of the SM should be linked to her  Aadhar Card[xxviii] which should include all relevant details, especially about previous surrogacies.


Endnotes


[i] Ministry of Health and Family Welfare, Government of India: https://twitter.com/MoHFW_INDIA?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor
[ii] ICMR (2005) “National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India”, http://icmr.nic.in/art/art_clinics.htm (accessed 3 September).
[iii] Jennifer Rimm (2009) “Booming Baby Business: Regulating Commercial Surrogacy in India” http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1837&context=jil (accessed 1 September 2016)
[iv] Richard Posner (1989) “The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood”, http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2809&context=journal_articles (accessed 1 September 2016).
[v] Aristides Hatzis “'Just the Oven': A Law & Economics Approach to Gestational Surrogacy Contracts” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=381621 (accessed 1 September 2016).
[vi] Kristine Schanbacher (2014) “India's Gestational Surrogacy Market: An Exploitation of Poor, Uneducated Women”, Hastings Women’s Law Journal, Vol. 25 (2), http://repository.uchastings.edu/hwlj/vol25/iss2/5/ (accessed 3 September 2013)
[vii] Jennifer Rimm (2009) p. 1444
[viii] “Surrogacy by Country”, http://www.familiesthrusurrogacy.com/surrogacy-by-country/ (accessed 1 September 2016)
[ix] Nita Bhalla and Mansi Thapliyal (2013) “Foreigners Are Flocking To India To Rent Wombs And Grow Surrogate Babies”, http://www.businessinsider.com/india-surrogate-mother-industry-2013-9 (accessed 1 September 2016)
[x] For an alternative estimate, see Ritika Mukherjee (2015) “The Baby Business: A Study on Indian Market of Commercial Surrogacy and Its Implications”, http://paa2015.princeton.edu/abstracts/152404 (accessed 1 September 2016)
[xi] Amrita Pande (2009) “Not an ‘Angel’, not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India”, Indian Journal of Gender Studies, Volume 16 (141), http://ijg.sagepub.com/content/16/2/141.short?rss=1&ssource=mfc (accessed 1 September 2016)
[xii] Vasanti Jadva and others (2003) “Surrogacy: the experiences of surrogate mothers”, Human Reproduction Vol.18, No.10, http://humrep.oxfordjournals.org/content/18/10/2196.full.pdf+html  (accessed 1 September 2016)
[xiii] Amrita Pande (2009) page 150
[xiv] Amrita Pande (2009) page 150
[xv] Sheela Sarvanan (2013) “An ethnomethodological approach to examine  exploitation in the context of capacity, trust and experience of commercial surrogacy in India”, Philosophy, Ethics, and Humanities in Medicine, Vol.  8(10), https://peh-med.biomedcentral.com/articles/10.1186/1747-5341-8-10 (accessed  3 September 2016)
[xvi] Sheela Sarvanan (2013) page 6.
[xvii] Vasanti Jadva and others (2003), Table II.
[xviii] See also Susan Imrie and Vasanti Jadva (2014) “The long-term experiences of surrogates: relationships and contact with surrogacy families in genetic and gestational surrogacy arrangements”, Reproductive Biomedicine Online,  Vol. 29 (4), http://www.sciencedirect.com/science/article/pii/S1472648314003538 (accesses 4 September 2014)
[xix] Amrita Pande (2009), page 157; emphasis in the original
[xx] Amrita Pande (2009), page 147
[xxi] Amrita Pande (2009), page 147.
[xxii] Oliver Williamson (1985): The Economic Institutions of Capitalism. Free Press: New York.
[xxiii] Milgrom, P and J Roberts (1992): Economics, Organisation, and Management, Prentice-Hall: Englewood Cliffs, NJ.
[xxiv] Sara Sidner (2008) “Surrogate baby stuck in legal limbo” , http://edition.cnn.com/2008/WORLD/asiapcf/08/12/surrogate.baby/index.html?iref=24hours (accessed 3 September 2016)
[xxv] Richard Posner (1989)
[xxvi] Harry Aslop (2013) “US surrogate mother Crystal Kelley flees after baby's parents order her to abort foetus”, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9910263/US-surrogate-mother-Crystal-Kelley-flees-after-babys-parents-order-her-to-abort-foetus.html (accessed 3 September 2016)
[xxvii] Prime Minister’s Jan Dhan Yojana is designed to provide all households, urban and rural, to gain easy and universal access to financial services including banking, http://www.pmjdy.gov.in/ (accessed 3 September 2016)
[xxviii] Aadhar Card is designed to provide a unique identification number to every Indian, https://uidai.gov.in/ (accessed 3 September 2016)