The proposed surrogacy law should not be a hurried "look-good" response from the government.
Since surrogacy was first legalised in India in 2002 neither the Indian Council of Medical Research (ICMR) guidelines, nor the Assisted Reproductive Technologies (Regulation) (ART) Bill which underwent many changes from 2010 to 2013 have been able to cover the highly complex medical, socio-economic, cultural and gender aspects that it encompasses. These complexities have only grown even as the “surrogacy industry” with nearly 3,000 ART clinics is estimated to have an annual turnover of Rs 900 crore. The first moves towards regulating the industry in 2008 ended with a legal impasse. This time it is a public interest litigation (PIL) and the Supreme Court’s demand for an answer from the centre that has led to the subject gaining renewed attention.
An affidavit filed by the centre (but not tendered to the Court for a response at the time of going to press) has set the cat among the pigeons: it says that the government is against commercial surrogacy and will only allow altruistic surrogacy for needy married Indian couples. If it goes ahead with this provision coupled with that in the ART Bill, 2014 not to allow foreigners to avail of surrogacy facilities in India, it will be the death knell for the “surrogacy industry.” It is very likely that the powerful and lucrative industry is not going to fold up quietly without a fight. Already, there is speculation that it will be driven underground and neighbouring countries will reap the “benefit.” That would also be unfair to the countless beneficiaries of this medical advance.
The draft bill 2014 is up on the health ministry’s website inviting comments and suggestions by 15 November. Though there is no precise data, estimates say that between 15,000 and 20,000 foreign couples come here every year, attracted by the comparatively low costs, procedural ease and sophisticated medical skills available. With no law in place, surrogacy in India has been governed by the ICMR guidelines issued in 2005 for accreditation, supervision and regulation of ART clinics. As of now, infertile Indian married couples, and married couples of overseas citizens of India (OCIs), persons of Indian origin (PIOs) and non-resident Indians (NRIs) can avail of the surrogacy facility while foreigners, married for at least two years, need to first take a medical visa. The draft bill 2014 stipulates that surrogacy facilities will be available only to an Indian couple (or a foreigner married to an Indian citizen) defined as a man and woman married to each other, thus leaving out unmarried people, whether heterosexual or gay/lesbian. Rights activists have pointed out that the “married only” couple clause goes against some provisions of the adoption laws apart from the obvious injustice to singles and gay/lesbian persons.
The draft bill says surrogacy shall be permissible for OCIs, PIOs, NRIs and foreigners married to Indian citizens. It also proposes a National Advisory Board, State Advisory Boards and National Registry for the accreditation, regulation and supervision of assisted reproductive technology clinics and the assisted reproductive technology banks to oversee all related matters. Following cases in the past where the commissioning couple refused to accept one baby of twins born to the surrogate and disputes arising from the baby being born with disabilities, the draft says that the commissioning couple will be “legally bound” to “accept the custody of the child or children irrespective of any abnormality that the child or children may have.” It says that a surrogate will have to be a married woman between 23 and 35 years old, have at least one live child of her own who is three years or older and shall not act as a surrogate for more than one successful live birth in her life and with not less than a two-year interval between two deliveries. A local guardian will be appointed for the surrogate until completion of the process and the mother and baby will be insured at the cost of the commissioning couple for any medical complications that arise. The National Commission for Women (NCW), however, has suggested that single women, including divorcees, the separated and widows, should be allowed to become surrogate mothers.
In its 2013 study, the Centre for Social Research, a Delhi-based non-governmental organisation working with women, found during a survey that a large percentage of surrogates interviewed (in Delhi and Mumbai) had no clue of the terms of their contract and a larger percentage in Delhi did not even have a copy. Though there are physical difficulties and social suffering associated with the process, women yet act as surrogates, the driving motive being money. An entire network of middlemen/women, doctors, specialists, consultants and others is engaged in this “altruistic” work which is based on the surrogate’s financial vulnerability. The moral debate on whether this is a win-win for all parties concerned or an exploitative phenomenon has not been settled.
The government must desist from declarations simply to deflect criticism or circumvent potential legal predicaments. Surrogacy is a boon to infertile couples and singles, Indian or foreign, but needs to be regulated with strict checks. It also involves delicate psychosocial issues that cannot be addressed in a hurry. A knee-jerk, “look good” attitude will be disastrous.
