Events & Issues

New Delhi, 8 September 2016

Regulation of Surrogacy

ANSWER TO MULTIPLE ISSUES

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

The news that the Government may revise the draft Surrogacy (Regulation) Bill 2016, before it is brought in the winter session of Parliament, is welcome. A rethink has been necessitated after concerns were raised by doctors over some provisions of the Bills being unreasonable, which may defeat the aim to check commercial surrogacy. 

The Bill, cleared by the Union Cabinet recently, has proposed measures to deal with an intimate family issue that has developed commercial features within a short time. Assisted Reproductive Technologies (ART) is in practice in India without comprehensive regulations. Surrogacy is one such technology. The Bill was required as India has emerged as a surrogacy hub for couples and incidents have been reported on unethical practices.

Basically a biological and ethical question, one would normally expect that surrogacy would be   an unacceptable idea in a conservative and tradition-bound country like India. On the contrary, it seems to be receiving acceptance and adoption in some sections and has grown as a thriving business. Indeed, the country is sometimes extraordinarily willing to receive radical ideas with amazing calmness.

No need to mention that surrogacy finds patronage from couples unfit to beget a baby and from families (not just surrogate mothers) wanting to earn money by providing a “service”.  Professional expertise and clinic facilities have appeared in astonishingly short time. Fertility, a private matter, has now become a topic for public discussion.

The word “surrogate” derived from the Latin “subrogare” means “appointed to act in place of”, a “substitute”. There are four types of surrogacy – traditional which denotes pregnancy via artificial insemination; gestational which involves embryo transfer; and altruistic surrogacy which involves no money reward; and a fourth, commercial surrogacy which refers to a service for money.

What started as small-scale medical intervention to help childless couples wanting a progeny IVF (In Vitro Fertilization) soon emerged as a commercial enterprise developing global connections. Commercial surrogacy has become a booming “out-sourcing industry” in the world market. 

It is a multi-crore business likely to spread in urban and rural areas like sex-determination laboratories.  An estimate made by a UN team in 2012 put the size of the market as $400 million in India, which though big, appears to insiders as under-estimation.

Another estimate gives the basic turn- over of IVF industry as Rs. 20,000 crore a year, the major portion of which goes to doctors and middle men. The Guardian, reporting on surrogacy in India sometime back, has attributed the growth of the industry to the fact that costs are much lower and laws less stringent in India compared to many other countries and there are poor women happy to bear children for infertile western couples.

Falling birth rate in many western countries mostly by choice seems to be an important inducement for opening up commercial surrogacy in India in 2002. The country joined a small group of a few countries that included Russia, Thailand, Georgia, and Ukraine.

Commercialization leading to trade malpractices including cheating and exploitation of poor “womb lenders”, the Union government is compelled to address this new form of organ hiring. The Indian Council of Medical research (ICMR) issued guidelines for accreditation, supervision, and regulation of surrogacy and assisted reproduction clinics in 2005.

But, absence of legal regulations provided scope for degeneration of the practice to boost its commercial side.  In 2008, the Supreme Court remarked while disposing of a writ petition that, commercial surrogacy has reached enormous proportions with rich families creating huge demands, and poor families lured into renting their wombs for money. The Assisted Reproductive Technologies (ART) Bill was drafted then and was revised twice in 2010 and 2013.

The Report of the Law Commission in 2009 on the “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy” stressed the need for law to act as “an ardent defender of human liberty and an instrument of distribution of positive entitlements” At the same time, the Commission considered vague moral grounds without proper assessment of social ends and purposes as irrational in this issue.

It recommended active legislative intervention to facilitate the use of this new technology so as to legalize altruistic surrogacy and prohibit commercial industry.   

It is in this background the present Bill is being drafted. It seeks to ban commercial surrogacy  - a move intended to curb unethical surrogacy in keeping with the traditional values of Indian society. It allows only legally wedded Indian couples to opt for children through surrogacy and specifically excludes unmarried couples, single parents, live-in partners, and homosexuals from surrogacy.

Only Indian citizens would be eligible to opt for surrogacy – a provision that would end international trade picking up fast by exploiting the poor and the ignorant particularly the tribal people. Foreign citizens and NRIs will not be allowed to indulge in surrogacy. Presently, they are the rich clients behind this trade as their local laws mostly do not permit surrogacy, and as they can afford the luxury of having a baby without undergoing any strain or sacrificing any comfort. Surrogacy tourism is expected to stop after the Bill is passed.

Altruistic surrogacy will be open to close relatives of couples wanting a biological child. However, doctors have raised questions about this. Further, only childless couples, unable to have a natural child are allowed this option. A woman cannot become a professional surrogate mother as she can offer the service not more than once.

Stringent punishments are proposed for misuse and violation of altruistic surrogacy which may be imprisonment up to ten years and a fine of Rs. ten lakh. Abandoning a surrogate child or entering into commercial surrogacy are crimes under this bill, which provides for a clear contract between the parents and the surrogate mother so as to eliminate possible cheating and ill treatment.  The rights of surrogate mothers and of the children born out of surrogacy are being codified.

The basis for the proposed regulations is rooted in ethics and traditions – an area full of conflicting views. Opposition to the Bill is based on the contention that it will block the progress of an evolving modern society that should make best use of medical advances for social advantage and give up old and worn-out sentiments. 

India is not alone in debating the ethics, rights, emotional issues, medical progress, etc., surrounding this artificial child-making industry.  The issue is not settled in many countries. There is total ban on surrogacy in Germany, Italy, Norway, Pakistan, Portugal, Sweden, and Singapore. Only altruistic surrogacy is permitted in Canada, some Australian states, Greece, Denmark, the Netherlands, and the UK.  Regulated commercial surrogacy is in practice in the US. 

Surrogate contracts are not enforced by law in the UK which recognizes the woman who gives birth to a baby as its mother. But, parenthood can be transferred by “parental order” or adoption.  There can be no money transfer in the deal for the service. Thus, there are many ideas, practices, interests, sentiments, and stakeholders involved in this issue. They have to be addressed fully with an objective mind free from prejudices. 

Women and family related laws in India face many blocks in implementation. Before surrogacy becomes as common as female foeticide, the government has to intervene with clear and adequate laws and regulations in consultation with concerned people.--INFA

(Copyright, India News and Feature Alliance)