Debate over proposed surrogacy law continues

Debate over proposed surrogacy law continues

Before finalising the draft for surrogacy bill the government needs to look into certain crucial issues, writes Aarti Dhar


he Assisted Reproductive Technology (Regulation) Bill, 2014 has a curious provision. Chapter VII of the Bill specifying “Rights and Duties of Patients, Donors, Surrogates and Children’’ says a surrogate mother and her husband shall not have extramarital relationship during the gestation period!

But how exactly will this be monitored is unclear. The logic behind the provision seems to ensure that no harm is caused to the child growing in a surrogate’s womb but the authors of the Bill seem to have crossed the line, perhaps, without realizing that this amounted to violating an individual’s right to privacy and would be impossible to keep a tab on such activities.

“Any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child or children is handed over to the designated commissioning couple.’’ The other acts that may harm the foetus have been described as administering drug intravenously through a shared syringe, undergoing blood transfusion without medical supervision and guidance.

This provision has been included in the draft for the first time though the bill has been in the making since 2008, and has been modified several times since then. “This is the most absurd clause I have ever read. What has marital or extramarital sex got to do with the growth of the foetus,’’ says Brinda Karat, former Rajya Sabha member and woman’s rights activist. The clause should be deleted immediately, she says.

The fresh draft of the Bill bars surrogacy for foreigners in India but surrogacy shall be permissible to Overseas Citizen of India (OCIs), People of Indian Origin (PIOs), Non Resident Indians (NRIs) and foreigner married to an Indian citizen. Only Indian citizens shall have a right to act as a surrogate, and no assisted reproductive technology bank or assisted reproductive technology clinic shall receive or send an Indian woman for surrogacy abroad.

The Bill also prohibits single parents, live-ins and homosexuals from commissioning surrogacy. It says only “couples” can opt for surrogacy while describing “couple’’ a relationship between a male person and a female person who live together in a shared household through a relationship in the nature of marriage which is legal in India. Similarly, single women in India cannot become surrogates as since the written consent of surrogate mother’s spouse has been made mandatory before she acts as surrogate.

Also, the spouse of the surrogate mother will have to certify in his written consent that “he will take care of the well being of the existing child/children of their own especially during the surrogacy agreement period and till his wife who is acting as a surrogate mother is free from the obligation of agreement.’’

According to the Bill, a surrogate mother shall be an ever married Indian woman with minimum 23 years of age and maximum 25 years of age and shall have at least one live child of her own with minimum age of three years, and provided that no woman shall act as a surrogate for more than one successful live birth in her life and with not less than two years interval between two deliveries.

Importantly, the Bill has penalty provisions for those violating the law, when it comes into effect. The penalties include a huge monetary fine, imprisonment and even striking down the name from medical register. Also, there will be no role of brokers, agents or inter-mediators and the onus of proof in the case of negligence will be with the clinic and not surrogate or an egg donor. Violation of this provision has been made punishable.

“I welcome the clause which very clearly says that the onus of proof is with the clinic. This is a big move as a surrogate or an egg donor will not be in a position to prove if there is any negligence caused during the procedure,’’ says Sarojini N.B. of SAMA, an organization working on women’s health rights.

The proposed legislation aims at proper regulation and supervision of Assisted Reproductive Technology (ART) clinics and banks in the country, and for prevention of misuse of this technology, including surrogacy, and for safe and ethical practices of this technology. It seeks to establish a National Advisory Board, the State Advisory Boards and the National Registry for the accreditation, regulation and supervision of assisted reproductive technology clinics and the assisted reproductive technology banks, for prevention of misuse of ART including surrogacy.

While there is no law governing surrogacy in India, the ICMR guidelines in 2002 to regulation assisted reproductive technology, including surrogacy, have kind of legalized surrogacy. According to a 2012 study done with the help of United Nations, the estimated turnover of commercial surrogacy in the country is said to be more than $400 million annually with over 3,000 fertility clinics operating.

However, the issue with surrogacy has been exploitation of poor women who often agree to surrogacy as it is lucrative, notwithstanding the adverse health impacts it carries with it, including psychological attachment with the child.

The draft Bill has already become contentious with the Supreme Court hinting at banning commercial surrogacy and the National Commission for Women recommending that single women be allowed to become surrogate mothers. As expected, fertility experts and owners of fertility clinics have opposed such stringent provisions in the Bill and claimed that it would adversely impact the “booming baby market’’ in the country.

The Apex Court earlier this week had said that commercial surrogacy should not be allowed but it was going on in the country. It said surrogacy was becoming a business and had evolved into surrogacy tourism.

The court asked the government to take a stand whether a woman who donates her egg in commercial surrogacy can be said to be the only mother or both surrogate and genetic mother can be said to be mothers of the child while asking the government to bring commercial surrogacy within the ambit of law.

The Bench also sought to know from the Centre whether commercial surrogacy amounted to economic and psychological exploitation of the surrogate mother and whether the practice is inconsistent with the dignity of womanhood. The government has to respond to a set of questions on October 28. The court was hearing a PIL filed by advocate Jayashree Wad who claimed the country had virtually become a “baby factory’’ with a large number of foreign couple coming to India in search of surrogate mothers.

With the Supreme Court taking a strong view on the issue, sources in the Ministry of Health and Family Welfare said the government was contemplating disallowing, if not totally banning, non-resident Indians from renting wombs in India. Banning NRIs and Indian settled overseas from surrogate services in India has also been sought by the National Commission for Women to prevent exploitation of women.

The NCW chairperson Lalitha Kumaramangalam also said that not allowing single, unmarried, divorced or separated women to become surrogates amounted to restricting the reproductive rights of single women.

The Bill also makes Aadhar card mandatory for those opting for surrogacy which is against the Supreme Court ruling and Section 46 (4) “General duties of ART clinics and banks’’ states that “either of the parties seeking ART treatment or procedures shall be entitled to specific information in respect of donor or gametes including height, weight, ethnicity, skin colour, educational qualifications, medical history of the donor.’’ Experts feel allowing information such as ethnicity and skin colour could  be a dangerous trend, as it can lead to information about caste, and, hence, discrimination.

The Indian Society for Third Party Assisted Reproduction, a body of fertility experts, has demanded reframing of the Bill as the present draft would impact medical tourism in the country. While quite a number of countries in the world including the United Kingdom do not allow surrogacy, particularly commercial surrogacy, those which do allow are governed by stringent guidelines.

In March 1996, the Israeli government legalized gestational surrogacy under the “Embryo Carrying Agreements Law’’ making it the first country in the world to implement a form of state-controlled surrogacy in which contract has to be approved directly by the government. Since 2014, same-sex couples are also allowed to enter a surrogacy arrangement within Israel.

In South Africa, the law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of law, no non-validated agreements are enforced and the agreements have to be altruistic in nature rather than commercial. If there is one commissioning parent, he or she must be genetically related to the child. If there are two, they must also be genetically related unless that is physically impossible due to infertility or sex (same sex couple).

In July this year, Thailand banned foreign people travelling there to have commercial surrogacy contract arrangement under the Protection of Children Born from Assisted Reproductive Technologies Act. Only opposite sex married couples as Thailand residents are allowed to have commercial surrogacy arrangement. In the past Thailand was a popular destination for couples seeking surrogate mothers.

In Ukraine, gamete and embryo donation is permitted on a commercial level. Single women can be treated by unknown or anonymous donor insemination. There is no concept of gay/lesbian marriage there and such parents are allowed to be treated as single parents. In the USA, Arakansas, California and New Hampshire allow surrogacy for single women and for same sex marriage while Michigan totally forbids surrogacy.


Aarti Dhar is a Delhi-based senior journalist who has covered a variety of social, developmental and political issues, which include over two-decade-long association with The Hindu as Deputy Editor

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