Insights into Editorial: Taking the high moral road to surrogacy
A draft bill which aims to safeguard the rights of surrogate mothers and make parentage of such children legal was recently cleared by the Union Cabinet. The Bill will shortly be introduced in the Parliament.
- The Bill aims to regulate commissioning of surrogacy in the country in a proper manner. It aims to safeguard rights of surrogate mothers and legalise the children born to them.
- The draft bill has several checks on who is an eligible candidate for surrogacy, and also has restrictions on who can be a surrogate mother. The government, in this legislation, has also tried to define a couple in “need” for a surrogate child.
- If approved, the law will be applicable throughout India except for Jammu and Kashmir.
Why a Bill in this regard was necessary?
In the absence of a statutory mechanism to control commissioning of surrogacy at present, there have been cases of pregnancies by way of surrogacy, including in rural and tribal areas, leading to possible exploitation of women by unscrupulous elements.
What is surrogacy?
Surrogacy or surrogate motherhood is a form of assisted reproductive technology that helps couples, who are unable to conceive, have a child. The process involves the services of a woman who agrees to carry a child and deliver the child for the couple. Apparently, five individuals can claim parenthood in this situation: the woman who donates eggs, the woman who carries the child, the woman who will raise the child, the man who donates the sperm and the man who will raise the child.
According to the Bill, who can opt for surrogacy?
- Legally wedded Indian couples
- Childless couples who are medically unfit to have children.
The couples who are going for surrogacy will have to produce a certificate proving one of them is unfit to bear a child.
Who will be barred?
- Couples already having one child.
- Overseas Citizens of India (OCI) card holders.
- Single people.
What else is there in the Bill?
- The bill states that the surrogate child will have equal rights like any other biological or adopted child over property.
- The surrogate mother, who should be married and have borne a healthy child, needs to be a close relative of the couple. She should be within the age of 23 to 50 years and her husband should be between the age of 26 to 55 years.
- The Bill prohibits commercial surrogacy.
- A woman will be allowed to become a surrogate mother only for altruistic purpose and under no circumstances money shall be paid to her, except for medical expenses. Also, only ‘close relatives’ can turn candidates for surrogacy, according to the proposal.
- Also, couples having a child already (biological or adopted) can’t approach a surrogate mother.
- The government has proposed that it will establish a National Surrogacy Board at the central level, chaired by the health minister, and State Surrogacy Boards and appropriate authorities in the states and union territories. They will overlook all cases of surrogacy and regulate hospitals and clinics that offer this in India.
- Further, the bill has also a provision for jail term upto 10 years, and a fine of Rs 10 lakhs for violations, such as abandoning the child and opting for commercial surrogacy.
Why commercial surrogacy should not be allowed?
It allows anyone with the money to decide to have a child, order one and have it delivered. In the absence of regularisation, he or she could even disown ‘the product’ once it was ready.
Why, according to some such move would be disastrous?
Over the years, the surrogacy industry in India has grown into a multi-crore industry. Hence, a complete ban would not just badly hit surrogacy industry in India, but also would put embryonic human lives, being gestated in the safe wombs of alternate mothers, at stake.
- Such ban would affect the surrogates, who are in it because it is a means of livelihood. From their perspective, there is nothing morally or ethically wrong because the babies are conceived through injection (embryo implant) and not through sexual intercourse.
- The ban would also hurt the sentiments of intending parents. For them, surrogacy is a boon which gives them the child they never thought they could have.
- Fertility specialists would lose their job.
How such ban proved disastrous in Thailand?
Thailand, a popular destination for fertility tourism, suddenly clamped a ban on commercial surrogacy earlier this year, after a couple of disasters exposed the dark side of this industry. However, the result was chaos. A number of surrogates in various stages of pregnancy were left in limbo. Intending parents did not know how to collect their babies. Consequently, the surrogacy industry got pushed underground.
Surrogacy in India:
Commercial surrogacy in India has been around for a couple of decades now. The first surrogate baby in India was born in 1994. The industry has since evolved, and today India offers some of the best fertility packages in the world. Intending parents with a valid fertility visa can come to India and get their IVF procedures done, hire healthy surrogates, return home, and monitor the entire pregnancy from afar. They can also get proper exit visas to take the children home after they are born.
- Earlier, the agreements between intending parents and surrogates were oral and the latter were often underpaid and ill-treated. Today, there are proper contracts to ensure that neither party is cheated. In many of the bigger and better organised fertility clinics, the surrogates are housed in special homes, given proper diet, medical checkups and maintenance allowances.
- At present, the surrogacy business functions under the regulatory guidelines issued by the Indian Council of Medical Research. It is estimated that surrogacy industry in India has a turnover of more than $400 million a year.
Why India is famous for commercial surrogacy?
- Foreigners prefer India because it is cheaper here or because commercial surrogacy is unavailable in their own countries.
- In India, egg donations are legal and cheaper. While in some countries it is totally banned, and in other countries it has become a big business.
What experts say?
The Surrogacy (Regulation) Bill has invited mixed reactions from doctors and surrogate mothers. Women rights activists showed concern that implementing ban on commercial surrogacy will be challenging. They said that government’s ban was a step in the right direction but it may push surrogacy underground.
- According to experts, if the Bill is passed in this form it could well sound the death knell for the flourishing fertility clinics in India, which have acquired an excellent reputation worldwide.
Problems with the new bill:
- The new draft bill introduces an impediment by defining who has a right to become a parent. According to the Bill only hetrosexual couples who have been in a marriage for at least five years and have proven fertility problems can access fertility treatment and if a surrogate is required then they have to identify a relative who would carry the baby out of altruism.
- But, in today’s world, there are many socially acceptable relationships which fall outside this rigid category – single people who chose not to get married, those in live-in relationships, gay couples, divorcees, and widowed persons. These people would not have a right to access fertility services.
- Foreign couples have already been banned by the Indian government refusing them entry visas for fertility tourism. Without this visa, a couple cannot take a child born to a surrogate in India out of the country. This effectively killed fertility tourism which also meant it took a large chunk out of the $1 billion a year and growing Indian fertility industry. A fillip has been given to this by the new draft bill.
- Many countries including the UK that have experimented with altruistic surrogacy have realised that this only tends to push the whole transaction underground. A woman who bears a child for another one is actually performing a service and needs to be compensated for it. If altruistic surrogacy is enforced, the commissioning parents have to find some non-legal means to pay the woman who has spent a year or more of her life trying to ensure the birth of a healthy baby or babies.
- A woman must have rights over her own womb and can use it to make babies for others if she so wishes. It becomes exploitation only when she is either forced to do so by physical or emotional pressure. This can happen even in altruistic surrogacy. A poor relative, a dependent or a woman from the family in any sort of vulnerable position can also be pressurised into bearing a child for a richer, more powerful infertile couple.
- The Bill’s provisions also seem to be geared towards rural and tribal women as being exploited for surrogacy. But, a surrogate usually comes from an urban background because that is where the clinics are and she has to undergo medical checks and give her own consent as well as get the consent of her family before she is recruited. While baby traders may target rural and tribal women, they are not exploited by IVF clinics.
The Surrogacy Bill has been on the cards for over a decade now. It is not as if this government suddenly found that India has become a hub for surrogacy. There have been several versions of this Bill but none have been tabled so far. The latest proposal also lacks in some areas. It does not attempt to understand or address the issues surrounding fertility technology and by doing so actually denies access to a large number of people who would actually benefit from treatment.
Before this Bill is passed, several questions need to be asked and answered so that it actually becomes meaningful. There should be a filtering mechanism to weed out medically or socially unfit parents, quack doctors, fraud clinics and surrogates who are biologically unfit or are being exploited in some way. But this should be done systematically within realistic parameters. While the Bill correctly fixes the cut-off age for all those involved, it does not address other issues of background checks, the role of ART banks, the content of the contracts and most importantly the rights of the child.
The government has now decided that the bill will be referred to Parliament’s Standing Committee on Health and the new law will be notified 10 months after it is cleared by the two Houses to allow mothers who are already pregnant then to have a surrogate baby.
It has taken several decades for Indian doctors to build up expertise in this field. They have also over the years streamlined the process and established excellent state-of-the-art clinics and this is basically why India has become a destination for people from all over the world seeking fertility treatment. Thus, before such ban is invoked, the government has to take into consideration the needs and aspirations of various people involved in this business. Surrogacy industry in India is fully grown today. And banning at this stage will only create chaos and push the business underground. Instead, framing a proper law, providing good technical inputs and good political will would help ease the situation. Strict regulations should also be put in place to deal with bogus embryologists and doctors, the agents and touts who lure and cheat surrogates.