Meaning of Surrogacy:
Through surrogacy another woman carries and gives birth to a child for a couple who want to have a baby, but are unable to do so because either or both partners are medically unfit to conceive, another woman is artificially inseminated with the sperm of the father. She then carries the child full term and delivers it for the couple. In such a case, the surrogate mother is the biological mother of the child. In some cases, when the father’s sperm cannot be used, a donor sperm can also be used and that is called ‘Traditional Surrogacy’. In Gestational surrogacy, eggs from the mother are fertilised with the father’s/donor’s sperm and then the embryo is placed into the uterus of the surrogate, who carries the child to term and delivers it. In this case, the biological mother is still the woman whose eggs are used, while the surrogate is called the birth mother.
Reasons of Surrogacy:
Couples opt for surrogacy when traditional means of conceiving a child have failed, this also includes in-vitro fertilisation, or it is dangerous for the couple to get pregnant and give birth. The following medical conditions usually necessitate surrogacy:
- Malformation of or infection in the womb
- Absence or removal of womb by hysterectomy
- Recurring miscarriages
- Repeated failure of IVF
- Other conditions that make impossibly or risky for a woman, such as severe heart disease.
Apart from it, these days trends of single parenting, homosexual relations and married women avoiding pregnancy due to careeristic approach of life or its pain have been emerged and in this background, they usually opt for surrogacy.
Emergence of India as a Global Surrogacy Hub
In 2002, India became the first country to legalise commercial surrogacy. During one and half decade, India had become the ‘surrogacy capital’ of the world with surrogacy tourism valued at approximately $500 million annually (In 2012) It has been emerged as favourite destinations for childless foreign couples due to lower cost of surrogacy.Anand in Gujarat with its countless IVF clinics and ready availability of surrogates has emerged as Ground Zero for Surrogacy.In 2009, Law Commission has mentioned in its report that the artificial reproduction treatment industry is Rs. 25,000 crore industry. According to some estimates, approximately 2,000 babies are born every year through commercial surrogacy, a $ 2.3 billion industry in India.
Emergence of India as a surrogacy hub must be seen in the global as well as domestic conexts. In the global context, France and Germany ban surrogacy, while the UK recognises non-commercial surrogacy. Many states in America recognise compensated surrogacy. It costs about 3 lakh USD for the procedure there. Israel is now opening up on surrogacy, and it costs about Rs. 60 lakh. In India, the entire medical procedure, stay, legal contracts, etc costs about Rs. (12-18) lakh in a reputed clinic. And the surrogate gets between Rs. (2-5) lakh. It is true that compensation for surrogate mothers has beeen stagnated; it was Rs 2.5 lakh in 2000, and remains the same now. But, in spite of stagnation in compensation, it is attractive as surrogate mothers come from the vulnerable and deprieved section of Indian society and the amount paid as compensation is helpful in better future planning and better look after their own children. In other words, poverty, relatively low medical costs, skilled medical personnel and lax laws are the domestic factors which created potentials in Indian surrogacy market.
Background of Amendment:
Growth Potential in India as a global hub for commercial surrogacy paved the way for development of various surrogacy rackets which are currently in operation across the country and which led to the exploitation of women, especially those in rural and tribal areas. Apart from it, Baby Manji Yamada case and Australian Couple case exposed the existing framework and complexities related to surrogacy. In 2008, two-week-old Baby Manji Yamada was left stateless after the separation of Japanese commissioning parents during the pregnancy period and both of them refused to accept the baby. After a long legal battle, the custody was granted to the baby’s grandmother. In the mean time, the Gujarat High Court called for the review of the existing law and immediate need of legislative response to such issues. Again, in 2014, an Australian couple was reported to have abandoned one of the twins it had through a surrogacy arrangement because it already had a child of the same sex. These all indicate that while surrogacy has been legal since 2002, but neither the surrogacy industry is regulated nor the rights of the surrogate mother as well as the rights of the children born through surrogacy has been properly and clearly defined till now. The need to regulate the surrogacy sector has been constantly felt following incidents of exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes. So, it is a dire need to streamline and clear the ambiguity around surrogacy and IVF rules and laws in India. In this background, the Law Commission of India,in its 228th report, recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by reviewing of the surrogacy law and suitable changes in it.
Limitations of Existing Framework:
In this context, it must be remembered that in case of foreign couples, Surrogacy is, in fact, well regulated. The couple need to register with the Indian embassy, get documents from their doctor saying that they are unable to have a child, and they came on a medical visa. What is not regulated or what problem has not been addressed in the existing framework is that: what will be the future of the ‘Surrogate Orphan’? how will the statelessness of the surrogate baby be addressed? If the parent’s country doesn’t permit surrogacy, then what will be the legal implications?Inspite of banning surrogacy for foreign couples, these concerns need to be addressed. Again, incase of birth of a surrogate baby with disabilities, or a stillborn/dead child, whether the surrogate mother will get her payment or not: there must be clarity on this front.
Real Concern Regarding Surrogacy:
There is absolutely no dispute that the surrogate mother needs to be protected, physically, financially and emotionally. Her physical and mental health must be maintained.In fact, reputed doctors and regulated clinics ensure the nutrition and well-being of the surrogate mother. While emotional health is concerned, it is a bit difficult to determine. But, a sense of service and sensitivity of the surrogate child’s parents by keeping the surrogate informed of the child’s progress emotionally compensate it to some extent, provided it is done with full consent. The real problem is the middle-man who motivates them to move into surrogacy with false promises and kept the most of the amount with himself/herself as commission that is larger than what the surrogate mother receives just like in the case of kidney transplants and clinical trials as well.A study by the Centre for Social Researchrevealed that in the surrogacy wheel that may be worth up to Rs 40 lakh, surrogate mothers are not paid more than Rs 3-4 lakh.Through out the last one and half decades, the compensatory amount for the surrogate mother has been stagnant at Rs. 3 lakhs(+-) in spite of increase in surrogacy cost. The surrogate mothers are most vulnerable and their socio-economic condition makes them susceptible to exploitation. But, no any mechanism has been developed under the existing framework so that proper protection may be provided and ensured for them.
Proposed ART (Amendment) Bill,2016:
The Group of Ministers (GOM),headed by SushmaSwaraj, finalised this Bill, which deals solely with surrogacy. On 24th of August, the government approved the ART (Amendment) bill.Itis aimed at clearing the ambiguity of Indian surrogacy market by making the process more transparentand seeks to regulate all aspects of assisted reproductive practices. It also aims at curbing unethical practices and protecting the rights of surrogate mothers and such children by regulating surrogacy in a proper manner.
- It completely bans commercial surrogacy, In commercial surrogacy, one has to pay the surrogate mother and it is ensured that the mother and baby never come in touch. So, it creates ethical dilemma. But, by barring commercial surrogacy, this bill avoids such type of dilemma. In this case, the child would know who the biological mother is because it is a close relative. In the absence of close relatives, the couple will have to opt for adoption,
- It makes surrogacy illegal for single parents whether divorcee or unmarried, homosexual couples and couples in live-in relationships. Barring homosexual couples has been justified on the basis that India doesn’trecognise homosexual or live-in relationships. It is against Indian ethos.
- This bill bars those married couples also, who have biological or adopted children. It has been barred due to the possibility of discrimination, if not at the time of bringing up the child, then certainly when the question of property arises.
- Foreigners, Non Resident Indians(NRI’s) and Persons of Indian Origins(PIO’s) holding Overseas Citizens of India (OCI) cards have been barred from opting for surrogacy as divorces are very common in foreign countries.
- It only allows “altruistic surrogacy” for childless couples who have been married for at least five years and would no biological/adopted children. The age of the married woman should be between 23 and 50 years and for the man 26 and 55. For this, they will have to produce their medical certificate regarding their infertility.
- The Bill allows a couple with a mentally or physically challenged child to go for surrogacy.
- The surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own and can be a surrogate mother only once in her lifetime. Childless or unmarried women are not allowed to be surrogate mothers. She can’t be paid for that.
- As per the proposed legal framework, the surrogate child will have all the rights at par with the biological child, including property. It also outlines rights of surrogate mothers over their infants and simplifies issues of parentage.
- It provides for the essential registration of all surrogacy clinics. Clinics can charge for the services rendered in the course of surrogacy, but the surrogate mother cannot be paid. Surrogacy clinics under the Bill will have to maintain their record for 25 years to ensure that documents are made available in case of a legal dispute.
- National and state surrogacy boards will be the regulating authorities.A new board will be set up at the national, State and district-level to monitor these clinics and cases related to surrogacy.
- Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have all been deemed as violations that are punishable by a jail term of at least 10 years and a fine of up to Rs 10 lakh.
- Couples abandoning a baby risk 10-year imprisonment and aRs 10 lakh fine, or both. It also makes it illegal for doctors to do procedures that hurt the surrogate mother and the baby’s physical and mental health.
- This proposed bill restricts the number of times a donor could donate sperm and called for segregation of gamete banks and ART clinics, pinning a lot of the ambiguity in the industry to that conflict of interest.
- 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.It will apply to the whole of India, except Jammu and Kashmir.
It is clear that this bill ensures that genuine concerns, needs and desires of childless parents must be addressed at the one side, while none can take undue benefit of one’s misery. Recognizing the ill effects of surrogacy on mother’s health, this bill tries to restrict it in exceptional cases by restricting its scope.The Prohibition of foreigners and others from commissioning surrogacy in the country and effectively checking the exploitation of the rural and tribal women are the key objectives of the bill. It will help authorities to take action on the various surrogacy rackets operating in India.This Bill is expected to put a brake on the lucrative surrogacy business with over 3,000 Assisted Reproductive Technology (ART) clinics in the country. The Government has also decided not to allow any more surrogacy clinics. Yet, it is reality that surrogacy is not an extremely common practice among Indians, but it has emerged as a fashionable trend among Indian elites.
Comparision with The UK’s Bill:
With the proposed introduction of this bill, now India is set to join countries including Switzerland, Sweden, South Africa, Canada, Spain, France and Germany that have banned commercial surrogacy which will adversely affect the surrogacy industry because the contribution of the foreigners touches nearly three fourth of the surrogacy business. This Bill is based on the UK’s Altruistic surrogacy Bill with certain modifications. The UK’s Human Fertilisation and Embryology Act, 1990 and Surrogacy Arrangements Act agree and differ with India’s proposed Surrogacy Bill:
- Commercial Surrogacy:
Both impose complete ban on Commercial surrogacy and permit surrogacy only for altruistic reasons. In UK, only “reasonable expenses” can be paid, unless otherwise authorised by a court.
- Banning Surrogacy:
In UK, single parents are not allowed, while there are special rules for unmarried or homosexual couples. But, in India, single parent, unmarried couples and homosexual couples are not permitted.
- Commissioning Parents:
In UK, bothof the Commissioning Parentsmust be over 18; married, civil partners or living together in an enduring family relationship. One of the commissioning parents must be biologically linked to the child.In India,only childless couples who have been married for five years are eligible. Significantly, couples who have a biological child who is mentally or physically challenged also qualify.
- Status of Surrogate
In UK, surrogate mother is the legal mother. Her name appears in the birth certificate, and commissioning parents have to later obtain a parental order, which is similar to an adoption order, for custody of the child. But, in India, legal parents will be the couple commissioning the surrogacy, and not the surrogate mother. A child born through surrogacy will have the same rights as a biological child.
- Surrogate Mothers:
While the British bill allows surrogate motherhood only in the case of blood relatives, the Indian version allows surrogate motherhood in the case of “close relatives” which is a broader and vague term and it will be further elaborated in the rules.
Limitations of the Bill:
- Against the Indian mindset:
While the govt. is justifying the approved bill by saying that homosexual surrogacy is not in accordance with the “Indian ethos” and banning on surrogacy for the foreigners is due to high divorce rates in foreign countries, it disregarded other important aspects of the “Indian” mindset, which defines masculinity or femininity in the context of biological child. In western countries, from where it has been borrowed, it is not as much of a “curse” for a woman to be incapable of bearing her own child as in India.In such a society, it is anonymity of any information about surrogacy that has kept this industry in business. Incase of this bill taking the form of a law, this anonymity can’t be maintained and in such a scenario,the future integration of the surrogated child in the family will be adversely affected and it will pave the way for their social exclusion /ostracisation. So,It is not just a matter of privacy. It will create a complex situation that is fraught with ethical and emotional dilemmas.
- Against the Right To Have A Baby Through Surrogacy:
It will also deny couples the right to have a baby through surrogacy, only because they do not have a large “close” family and incase of it, if the member of that family isn’t willing to go through the physical ordeal for their sake, then they will have the only option of adoption, which social acceptance remained in question in India. So, It is a violation of the reproductive right of the surrogate mother.
- Discriminatory In Nature:
In comparision to the previous act of 2010, this bill is discriminatory in nature which discriminates between married and unmarried couples, between heterosexual and homosexual couples, between single parents and double parents, between divorcee and non-divorcee, between foreigners couples and Indian couples. It goes against the basic concept of equality.
- Ideological Basis of Banning in Question:
It is far from evident whether the ban has been imposed on the basis of ethical dimensions or for confronting the ground situation. But, the experiences regarding the implementation of the law related to organ donations and sex determination creates doubt about its proper implementation. It also doesn’t give the appropriate answer of this question: whether surrogacy is right or wrong, moral or immoral and ethical or unethical? If it is wrong, immoral and unethical, then why not is it completely banned and if not, then what’s the problem in allowing it?
Again, the ideological basis of the bill, in spite of the supreme court’s recent observation that, “live-in relations are now an accepted norm in society”, is a major cause for concern: “We do not recognise homosexual relationships and live-in relations. That is against our ethos.” Yes, homosexuality has been criminalised through section 377 of the IPC, which is outdated and irrelevant right now, in the country; such criminalisation has been persistently protestsd by human and democratic rights groups and activists in India as well as all over the world.
- Against the Emerging Situations:
The Bill may have the right intentions of protecting them, but is too stringent in its scope. While regulation is needed, the ban is not in line with the need of modern times.In its present form the Bill may end up denying millions of Indian women the opportunity to take advantage of advancements in medical science.
- Irreasonable and illogical:
Making surrogacy an effort motivated by altruism is also fraught. It uses the language of the organ transplant law whose pitfalls have been exposed by the frequent organ transplant scandals. Just as thereare people who require organs, there are those who desire babies and are willing to pay for surrogates.
The draft Bill bans renting a womb for money and allows it only if the woman is doing so for altruistic reasons, which surrogacy experts dubbed illogical and unreasonable.Surrogacy cannot be seen as illegal and immoral. The draft Bill is both draconian and unreasonable. The decision-makers have likened surrogacy to organ transplant, restricting it to close relatives. There needs to be a balance and understanding of the issue. Otherwise, the bill will simply torture a woman who is yearning for a child.
- Permiting Surrogacy for parents of Disadvantaged child:
There is no logic in allowing a couple with a disadvantaged child to go for surrogacy. That child needs care. A second child will complicate matters, and the first one may even be neglected.
- Banning Egg Donation:
The draft Bill even banned egg donation that would only ensure that a sizeable number of people seeking IVF treatment would not be able to take it up now.
What is needed?
If the Government has the real concern and it really desires to effectively check the role of middleman, then specific strategy for the crackdown of the middleman is needed. By effectively intervening, it can ensure that surrogacy and other such assisted reproductive procedures can be done only through registered clinics and doctors and all the information related to it must be put out online. Again, development of a proper mechanism for protection of physical, mental and emotional as well as financial interest of the surrogate mother was needed in stead of complete ban on it. Development of effective and accessible redressal mechanism as well as helpline facilities would be helpful also in bringing transparency. Blacklisting errant clinics indulging in illegal practices (including sex selection) and uploading this status on the website would also ensure that doctors and clinics immunise their premises from touts.