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India’s surrogacy services: Misplaced priorities, disturbing silences

Jun 24, 2013

Despite India being dubbed the surrogacy capital of the world, there is still no specific law in place to protect the rights of the parties involved, writes Dr Sunita Reddy.

Delhi: The Home Ministry’s latest guidelines that ban foreign gay couples from seeking surrogacy services is yet another example of the misplaced priorities that mark the regulation of the now hugely popular assisted reproductive method, even though there are far more serious issues surrounding this procedure that clearly need urgent attention.

This directive, in fact, is inconsistent with the prevailing social and legal environment in the country. India has slowly been embracing more liberal attitudes, accepting alternative sexualities and same-sex relationships. While the Domestic Violence Act recognises violence in live-in relations, the Delhi High Court had decriminalised gay sex in 2009. So barring foreign gay couples and single parents from accessing surrogacy services is retrogressive. Meanwhile, real issues like the protection of the rights of surrogate women and children still continue to be overlooked.

India has been at the forefront of many medical breakthroughs, especially in the field of assisted reproductive technologies (ART), including In-vitro Fertilisation (IVF) and prenatal testing. Factors like the low cost of healthcare – one-tenth of rates prevailing in Europe or the US – state-of-the-art medical technology, as well as skilled medical professionals have contributed towards making the country the favoured destination of those looking for cost effective yet competent non-elective surgeries and medical reproductive services.

Little wonder then that India has been dubbed the surrogacy capital of the world. It is a booming US$ 2.3 billion dollar industry today.

Unfortunately, there is still no specific law in place to lay down the ground rules and protect the rights of the parties involved. The existing National Guidelines for Accreditation, Supervision and Regulation of ART clinics in India, framed by the Indian Council of Medical Research (ICMR) and the Ministry of Health and Family Welfare in 2005, have no constitutional validity. Moreover, they are ambiguous and contradictory, even as the draft ART Regulation Bill 2010 is still pending in Parliament.

Where do the rights of the surrogate mother and child stand?

In this debate around what is legal and permissible, where do the rights of the surrogate mother and child figure? Unfortunately, right now, nowhere. In the absence of regulations or monitoring mechanisms, Indian clinics have evolved their own operating norms. They act as per their own convenience and so protection of the rights of the surrogate woman doesn’t really matter to them. This attitude is also exacerbated by the fact that there are no clear safeguards and guaranteed rights of surrogates in either the ICMR guidelines or the pending ART Bill.

Currently, the only safeguard mentioned is the need for a life insurance. But what about covering threats such as long-term health risks for the surrogate or compensation in case of loss of life, illness or postnatal care?

In this scenario, those who stand to gain the most are the clinics, the middlemen, and the so-called ‘agencies’. The commissioning parents pay the costs of child bearing. A surrogate woman, who undergoes nine months of pain and isolation from her family, is paid a mere Rs 2-3 lakh. This ‘good’ sum is given only after the baby has been delivered successfully and handed over to the parents. In case there are complications, the expectant mother is likely to get a much smaller amount. While commissioning parents and clinics can seek legal help when the need arises, the surrogate woman is again at a disadvantage as she more often than not cannot afford legal assistance.

The Law Commission Report (2009) states that the “ART industry is now a 25,000 crore rupee pot of gold. It seems that wombs in India are on rent, which translates into babies for foreigners and dollars for Indian surrogate mothers”. The Report presumes that surrogate women receive dollars or at least an adequate sum of money. This is far from the reality, as middlemen and clinics walk away with the lion’s share. And the most pressing legal and political problem is yet unsolved: Who is going to protect and support the hundreds of surrogate women who are going in for this ‘work’ only to provide a better education to their children or ensure a roof over their heads? Often there is the assumption that surrogate women volunteer or choose to do it but here it needs to be recognised that since most of them are illiterate, or have been married early and lack any livelihood skills, actually end up being pushed into ‘renting’ their wombs.

Surrogacy as a transnational issue

When it comes to highlighting the moral and legal entanglements that mark the process of surrogacy, there is another issue that begs attention – that of the rights of the newborn. As surrogacy is often a transnational issue. Couples generally cross borders to have a baby and in the process face various legal hassles, especially pertaining to the citizenship of the child. This becomes particularly serious when couples come from countries like Germany and Japan where surrogacy is not recognised. There have been cases where children have been left in limbo for long periods, causing anxiety to the couple involved and discomfort to the newborn.

Who can forget the case of Baby Manji Yamada v. Union of India, which revolved around the production/custody of a child, Manji Yamada, who had been borne of a surrogate mother from Anand, Gujarat, under a surrogacy agreement that had been entered into with the couple, Dr Yuki Yamada and Dr Ikufumi Yamada? While the sperm had come from Dr Ikufumi Yamada, the eggs had been donated. Eventually, there was a matrimonial discord between the commissioning parents. When the genetic father, Dr Ikufumi Yamada, desired to gain custody of the child he was not allowed to do so, since Indian laws do not permit single fathers to adopt babies. Eventually, after a long legal battle, baby Manji left for Japan in the care of her grandmother and genetic father.

Such a case clearly illustrates that in surrogacy births child rights are at stake. Instead of being welcomed into the world by loving parents and a protective family, they are often caught in legal battles. Also, given the modern reality of fragile marital relationships there is no assurance that the ‘commissioned’ child will definitely be received willingly by prospective parents. In such cases, the law resorts to imposing custody on to parents, so one can only imagine the kind of care and comfort the child will get while growing up.

Undoubtedly, the legal issues surrounding surrogacy are very complex. Even The Law Commission Report (2009) reiterates the need for a comprehensive legislation, adding that surrogacy involves conflict of various interests and has had an inscrutable impact on the primary unit of society – the family. Non-intervention of the law in this knotty issue will not be proper at a time when law has to act as an ardent defender of human liberty and as an instrument for the distribution of positive entitlements.

At the same time, prohibition on vague moral grounds would be irrational without a proper and democratic assessment of the social ends and purposes that surrogacy can serve. Active legislative intervention is required to facilitate the correct uses of new technology and relinquish the cocooned approach towards legalisation of surrogacy adopted hitherto. The need of the hour is to evolve a pragmatic approach by legalising altruistic surrogacy arrangements and prohibiting commercial ones.

If we go by the rights of couples and individuals to have children through this cross border medical process, it is necessary that all nations across the world enter into a global debate and evolve policies and guidelines. This would go some way in safeguarding the interests and rights of the children and the surrogates too. The international community should rise above commercial interests and provide a facilitating environment for citizens if they wish to expand their families.

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