Surrogacy Laws In India
For last few years, the use of surrogacy has gained currency in not only India but the world over. But we must not 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 a 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. The word surrogate is derived from Latin term “surrogatus” (substituted) which basically means “appointed to act in the place of”.
The surrogate mother is the biological mother of the child who conceives it through artificial insemination with the sperm that is taken from the husband. Alternatively, the wife may be fertile but incapable of carrying a growing foetus. In such cases, the child is conceived by in vitro fertilisation 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.
While surrogacy hit the headlines few months back, thanks to actor Shahrukh Khan, a survey by the Centre for Social Research (CSR) has revealed that about 60 per cent of surrogate mothers are kept in “shelter homes” and paid Rs 3-4 lakh per pregnancy. The survey which was conducted in Delhi and Mumbai found that the surrogate mothers usually hail from poor class, are illiterate and in dire need of money due to which they are ready to make any compromises on issue of the amount of money to be paid to them. They are made to sign the surrogacy contract, which they are incapable of understanding at all, are not given a copy of the written surrogacy contract, which is signed between surrogate mother, the commissioning parents and fertility physicians/doctors and are therefore exploited to the hilt by the doctors/fertility centres as well as their families on most occasions.
The surrogate mothers are forced to live in secrecy, in closely guarded rented homes, with limited access to their families. In Delhi, such rented homes are mostly concentrated in places like Janakpuri and Tilak Nagar. Mention must also be made here of the fact that one such “home” in Mumbai was a cramped one-room facility with five beds and CCTV cameras to monitor the women’s movements.
It is noteworthy that agents who recruit the surrogate mothers get Rs 7,000-10,000 per candidate. The survey, which is backed by the women and child development ministry, has asked the Centre to discourage commercial surrogacy and put in place a legal framework to prevent exploitation. It is no hidden fact now that almost a fourth of the “commissioning parents”, who pay Rs 10-40 lakh for a surrogate child, admitted their preference for a son. About 22 per cent said they had opted for a sex determination test, and 2 per cent said they had the pregnancy medically terminated for “social reasons”—researchers felt this was a euphemism for their preference for a son.
The survey while quoting the ICMR director claimed that approximately 2000 babies are born every year through commercial surrogacy, and cited CII figures that claim surrogacy is a $ 2.3 billion industry in India, because it is largely unregulated and cheaper. Clinics function in tight cliques, with unrelated centres like dental clinics sometimes assisting fertility clinics. CSR director Ranjana Kumari said: “There are many other issues besides sex selection. There are countries, which do not allow surrogacy, what would be the nationality of the child when the intended parents are from that country? About 40 per cent couples opting for surrogacy are foreigners.” She further added: “There is also a practice of impregnating multiple women with an embryo of the same couple to increase the chances of pregnancy. When one woman becomes pregnant, the others are given pills to terminate the pregnancy without their knowledge. And those women do not get any payment.”
There are even “discounts” offered for multiple surrogates, found researchers, citing the example of a centre that offered a surrogate mother for Rs 13 lakh and two for 17 lakh. While surrogate mothers may be told that they are rendering great service to a childless couple, a doctor told a CSR researcher that they are mere bodies doing something that another woman cannot do—much akin to hiring a maid servant. It is also disturbing to see, as the study found, that for the surrogate mothers, the money they earn is often spent on household expenses like paying for an asbestos shed, for the husband to start a new business, or even bribe his way out of a criminal charge.
It must be highlighted here that with an unregulated surrogacy industry booming in India, it has been observed that in many cases rich couples are preying on domestic helps and housemaids, coercing them to step up to the task as per their whims and fancies, which they do under financial duress. It is thus found that there is little or no protection for the surrogate mother controlled in the most part by a web of middle-men with medical practitioners opting to turn a Nelson’s eye to all such not-so-straight and controversial transaction. These are part of the conclusions drawn from a study on the surrogacy industry by NGO, Centre for Social Research (CSR).
We cannot be oblivious of the fact that the study, which was conducted among 100 surrogate mothers in Delhi and Mumbai, says that doctors refer to the transaction as “maid business”. CII has estimated the industry to be over $ 2 billion a year. Ranjana Kumari, director of CSR, lamented: “Due to the commercialisation of surrogacy, the plight of the surrogate mother and the unborn child is often ignored. There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child.”
It is imperative to mention here that the Law Commission in its Report No. 228 in August 2009 dwelt on the need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy and the relevant recommendations made in this regard are as under: –
- Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
- A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
- A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
- Legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
- The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
- Right to privacy of donor as well as surrogate mother should be protected.
- Sex-selective surrogacy should be prohibited.
Surveys have found foreigners make up 40 percent of the clientele. This must stop immediately. This also involves changing the mindset of the society. Another grey area that needs to be addressed is what would happen to a child born with some congenital problems. All issues relating to surrogacy have to be resolved properly and correctly because if this is not done, it has the capacity to unleash a lot of malpractices in the society.
By Sanjeev Sirohi