Tuesday, August 16th, 2022 03:15:34

Eradicating Commercial Surrogacy

Updated: July 28, 2017 12:27 pm

For last few years we have seen just how rapidly the use of surrogacy has gained currency in not only India but the world over. Yet, we must not ever forget that India along with Russia, Ukraine and certain states of the US is among the few countries that allow commercial surrogacy. It is imperative to understand first what exactly it means. Surrogacy basically refers to a mutually agreed contract, in which a woman carries pregnancy in lieu of money or anything else agreed upon for another couple, who want a child but the woman is either infertile or physically incapable of carrying a developed foetus. Let me bring out here that the word surrogate is derived from Latin term “surrogatus” (substituted), which basically means “appointed to act in the place of”. Alternatively , the wife may be fertile but incapable of carrying a growing foetus. In such cases , the child is conceived by in vitro fertilization using the wife’s eggs and her husband’s sperm, and the resulting embryo is thus implanted in the surrogate mother’s uterus and the path to safe delivery of child is cleared .

Now coming to the heart of the matter, in a strong bid to put a permanent full stop to the “commercial surrogacy industry”, which is estimated to be two-billion-dollar business in India, the Cabinet after the Health Ministry passed it gave the green signal on August 24, 2016, to the Surrogacy (Regulation) Bill 2016, which proposes a complete ban on the ‘rent-a-womb’ trade, barring foreigners, single persons and divorcees from opting for surrogate births. Only infertile couples are allowed to bear a child using a surrogate mother. Be it noted, if enacted, the Surrogacy (Regulation) Bill 2016 will allow only Indian citizens to have a surrogate child in India. Also, Non-Resident Indians (NRIs) or People of Indian Origin card-holders will not be allowed to take recourse to a surrogate mother in India. In addition, live-in couples, single parents and homosexuals will also be barred.

The new law will be notified ten months after it is cleared by the two Houses to allow mothers, who are already pregnant then, to have the surrogate baby.

Needless to say, a comprehensive law to regulate surrogacy has long been in the pipeline. Even though surrogacy has been legal since 2002 onwards, we are yet to see a law to regulate surrogacy to protect among other things surrogate mother’s rights and her bodily integrity. The External Affairs Minister Sushma Swaraj said:  “The Bill was required as India has emerged as a surrogacy hub for couples and incidents (were) reported on unethical practices.”

Under stinging attack from various quarters, including the Opposition Congress, over its draft Surrogacy (Regulation) Bill, 2016, cleared by the Cabinet, the Centre on August 26, 2016, said that it was open to incorporating suggestions when the Bill goes for scrutiny to the Parliamentary Standing Committee. Union Health Minister JP Nadda, however, maintained categorically that some of its key provisions, including putting a stop to abandonment of children and exploitation of women, are “non-negotiable”. He said: “Exploitation of women should not happen. Abandonment of children should not take place. These are non-negotiable.” He dismissed criticism that the government was trying to impose moral values on citizens. He said the Bill was about “righteousness” and the technological advancements in this area had to be used in the “right perspective”.

It is noteworthy that the Bill stipulates that even legally wedded couples can have a surrogate child only after five years of legal marriage and will be required to produce a medical certificate as a proof of infertility. The Bill also makes it mandatory for surrogate mothers to be married and be a close relative of the couple wanting a child. She should also have given birth to a healthy child before bearing a baby for another couple. A woman can only bear one surrogate child. Violating the law can attract 10-year jail term. It is also stipulated in the Bill that clinics assisting couples wanting a surrogate child will have to maintain medical records for 25 years after the birth of a child. Sushma Swaraj sought to clarify, “The Bill allows surrogacy only for necessity, not for luxury or fashion as we have seen repeatedly. Big celebrities who not only have one but two children, a son and a daughter, even they went ahead with surrogacy.” Sushma, however, did not name any celebrity here.

It was way back in 2002 that the Indian Council of Medical Research (ICMR) released guidelines, which made commercial surrogacy legal in India, but without legislative backing. This led to a sprawling surrogacy industry cropping up. Infertile clinics mushroomed and surrogate mothers were paid anywhere between Rs 70,000 and Rs 3 lakh per pregnancy. Everyone from couples to homosexuals were eligible for a surrogate baby. Currently, there are about 3,000 fertility clinics in the country.

According to a 2012 study by the Confederation of Indian Industry (CII), the size of India’s surrogate motherhood industry was $ 2 billion a year. But it was one that was fraught with grave risks and complete uncertainty, not just for the surrogate mothers but also the babies they agreed to bear as is illustrated by the following two examples. In 2012, an Australian couple reportedly abandoned one of twin babies born to an Indian surrogate mother as they already had a child of the same sex. This was reported two years later. In 2008, there was a case, in which a Japanese couple commissioned a surrogate mother and divorced before the baby was born. The mother eventually refused to accept the child.

It is noteworthy that activists who have been seeking to protect the rights of surrogate mothers have been demanding the elimination of middle-men, who serve as the contact point between infertility clinics and potential child-bearers. Going forward, they have also demanded a database, on which professional surrogates would be registered, based on the possession of an Aadhaar Unique Identity Card. This would help in keeping a track record of professional surrogates.

A contract is required to be signed between the commissioning parents and the surrogate mother, in which the latter would abdicate all claims to the child and the couple agree to take the baby under any circumstances but this was practised more in breach than in reality. That is why the need to regulate commercial surrogacy was felt so urgently. According to a study published by the Centre for Social Research (CSR), an NGO dealing with women’s issues, in 2014, 88% per cent of surrogate mothers in Delhi and 76 per cent in Mumbai did not know the terms of the contracts.

Ranjana Kumari, who is Director of CSR, very aptly says: “We wanted concrete steps to regulate the sector and protect the rights of the surrogates, but this Bill is a step in the other extreme direction.” She minces no words in putting across that a total ban on commercial surrogacy will only push the industry underground and render surrogate mothers even more vulnerable.  This has to be discouraged rather stopped under all circumstances.

What also merits attention here is that fertility clinics that offered surrogacy services in India have been regulated by ICMR’s guidelines, but these were not legally binding, leading to many unscrupulous practices being in vogue.

Himanshu Bavishi, who is the President of the Indian Society for Third Party Assisted Reproduction and who runs the Bavishi Fertility Institute with branches at Ahmedabad, Mumbai, Delhi and Kolkata, says that all fears associated with commercial surrogacy such as abandonment and exploitation of surrogate mothers were “exaggerated and could have very easily been regulated. Compensation for surrogate motherhood could have been fixed and an eligibility criterion decided, but instead, the government chose to exhibit a faux concern for women’s rights and prohibit commercial surrogacy entirely”.

It merits no reiteration that India has emerged as a surrogacy hub for couples from different countries where surrogacy is not permitted and there have been many reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and a series of rackets of intermediaries importing human embryos and gametes. This was a matter of grave concern and this is what prompted the present government to act and bring in a law to regulate surrogacy. It has also been repeatedly  highlighted both in print and electronic media for last couple of years the dire need to prohibit commercial surrogacy and allow ethical altruistic surrogacy.

To top it all, the 228th report of the Law Commission of India also recommended for prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation. This explains why Centre has prohibited commercial surrogacy and allowed ethical altruistic surrogacy to the needy Indian citizens. The Centre must ponder over what Meenakshi Joshi, who is an Ahmedabad-based women’s rights activist, said, “The Bill should not be passed in the present form. There should have been deliberations and public hearings. Seeking objections by putting details on the website does not work. This issue is sensitive and complex.”

The Centre must also deliberate over what Anil Malhotra, who is a Chandigarh-based lawyer and the principal author of “Surrogacy In India: A Law In The Making Revisited” has to say in this regard. He writes in The Indian Express: “The cabinet’s decision does not appear to be in consonance with constitutional provisions. Article 14 of the Constitution guarantees ‘equality before the law and equal protection of laws to all persons’. Article 21 guarantees ‘protection of life and personal liberty of all persons’. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality and has no connection with the intended objectives of the proposed legislation. Further, the right to life includes the right to reproductive autonomy, which includes the right to procreation and parenthood. It is not for the state to decide the modes of parenthood. Constitutionally, the state cannot interfere in the prerogative of a person(s) to have children, naturally or through surrogacy. Infertility cannot be a condition to undertake surrogacy. The proposed law ought to be put in the public domain before the country’s parliamentarians debate it. Successive draft bills — in 2008, 2010 and 2013 — had reportedly proposed that ART in India be available to all, including single persons and foreign couples. However, draft ART bills of 2014 and 2016 restricted surrogacy to Indian married infertile couples. The fate of the ART Bill, 2016, is unknown, while the cabinet has approved the Surrogacy (Regulation) Bill, 2016.”

Chitra Narayan, who is a lawyer and mediator practicing in Chennai, writes in The Hindu: “The Assisted Reproductive Treatment Act, 2008, in Victoria, Australia, is regarded as a progressive law for ART. It recognises the identity rights of the child, overriding the confidentiality right of the donor. Parentage is with the surrogate mother. The commissioning parents are required to get a parentage order from the court with the consent of the surrogate. The law sets out extensive obligations for the authority administering the Act, including psychological and legal counselling for the adults and the child. The authorities should verify that the adults seeking ART and the proposed surrogates have not been convicted for violent or sexual offences, or had children taken out of their care. Importantly, single persons, unmarried and same-sex couples can be parents through surrogacy.”

Senior Supreme Court lawyer Abhishek Manu Singhvi vocally criticizes it saying, “The new Surrogacy Bill seems to be something resembling a draft from the stone ages and not in keeping with contemporary India. It appears to follow a most anti-liberal approach, not at all in line with the social milieu that we live in and it is also unscientific. All kinds of value judgments have been injected into it in a very paternalistic manner.” He also was at a loss to understand some other aspects, which he asked: “Why are they restricting surrogacy only to married couples? Surrogacy could be desired by widows, live-in partners and NRIs among others. It was strange that the reason for excluding Overseas Citizen of India (OCI) and foreigners is that divorces are very common in foreign countries. If all the categories are banned, then why have surrogacy at all. This is an anti-liberal law.”

Dr Nayana Patel who is pioneer in commercial surrogacy says that commercial surrogacy should not be banned but regularized through registration of doctors and clinics with clear guidelines for protecting the interests of surrogates. A blanket ban will only help illegal surrogacy to thrive. Besides, what about women who for some medical reasons cannot become mothers? There will be more cases of suicides and divorce if commercial surrogacy is banned altogether.

By Sanjeev Sirohi   

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