Surrogacy Bill 2016: Womb worries

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A bill to ban commercial surrogacy is fraught with complications that will invariably drive it underground, endangering the health and interests of the surrogate mother

By Ramesh Menon

Couples hopefully looking at surrogacy to help them have a child were devastated with the draft surrogacy bill recently passed by the Union cabinet as it violates their fundamental right of choosing modes of parenthood. As infertility becomes an increasing problem, vexed couples grappling with it are at a loss. The bill has banned commercial surrogacy and only permits it if done with a relative. In a country like India where traditional and conservative mores dominate, we all know that it is not going to be easy. Some may never hear the pitter-patter of little feet, hear their laughter or their clever pranks.

The procedure involved in surrogacy is In-vitro Fertilization (IVF) where an infertile couple’s egg and sperm are fertilized in a petri dish to create an embryo. This is then implanted in the womb of a surrogate mother. She may charge a fee to do this. However, altruistic surrogates don’t charge. If the bill gets passed to become law, it will invariably give birth to a flourishing black-market in surrogacy.

Illustration Anthony Lawrence
Illustration Anthony Lawrence

Surrogacy flourished in India for more than 10 years as it had specialists with rich experience, medical facilities which were excellent, costs which were reasonable compared to other countries and women ready to become surrogates. It has now swelled to an industry worth over two billion dollars with more than 2,000 assisted reproductive technology clinics.

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Once the baby is born, the surrogate mother has no rights over it. She has to be mentally and emotionally prepared for this through professional counseling. They also have to be readied to ignore barbs from friends, neighbors and relatives who may suggest that it is immoral to do so. As it is women are under tremendous pressure to bear children. Motherhood has come to define life for many women due to societal and family norms.

Trupti Rajput found that she could not get a job even after completing B Com and LLB. She struggled to make ends meet with her husband’s meager earnings from working in a small shop. She had dreams to educate her only daughter in an English medium school. When a Jewish couple from New York contacted her asking if she would agree to be a surrogate mother as they could not have a child, she agreed. They offered her Rs 2,50,000 as compensation. She saw this as an opportunity to build a small house in Karamsad village in Anand district of Gujarat.

Surrogacy flourished in India for more than 10 years as it had specialists with rich experience, medical facilities which were excellent, costs which were reasonable compared to other countries and women ready to become surrogates. It has now swelled to an industry worth over two billion dollars with more than 2,000 assisted reproductive technology clinics.

Today, she is happy that she took this decision not because the house became a reality but because she brought so much joy to the couple. She told India Legal: “We have been referred to as baby producing machines. Others say that we have rented out our womb! Is this how those who became parents with our help look at us? I wish the government had talked to surrogate mothers and infertile couples before passing such a bill. They would never have then created all these clauses. Money is important but more than that is the gift of motherhood   that I offered to a grateful couple who had no children.”

The New York couple regularly sends Trupti photos of the child. She said: “I have seen her grow all these years. She has been told that she has two mothers, one in India and one in New York. I have also told my daughter that she has a sister in New York. We are all so happy. I wish the government also saw the reality of many such happy stories.”

What was crucially required was a strict regulatory mechanism that would ensure protection of surrogate mothers and to sniff out rackets. Photo: UNI
What was crucially required was a strict regulatory mechanism that would ensure protection of surrogate mothers and to sniff out rackets. Photo: UNI

The new Surrogacy (Regulation) Bill, 2016, bars overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples from hiring services of surrogate mothers. It has banned commercial surrogacy, restricting it to only legally-wedded infertile Indian couples. But even they have to be married for a minimum of five years and only a married blood relative who has borne a child can be a surrogate mother. And she can do it only once in a lifetime.

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External Affairs Minister Sushma Swaraj who headed the Group of Ministers formed to look into the issue of surrogacy said that surrogacy was against the Indian ethos! She said: “We have many examples of celebrities who had children and yet went in for a child through surrogacy. The procedure that started as a necessity became a hobby. This is not a thing for pleasure. It has become a fashion these days.”

The new Surrogacy (Regulation) Bill, 2016, bars overseas Indians, foreigners, unmarried couples, single parents, live-in partners and gay couples from hiring services of surrogate mothers. It has banned commercial surrogacy, restricting it to only legally-wedded infertile Indian couples. But even they have to be married for a minimum of five years and only a married blood relative who has borne a child can be a surrogate mother. And she can do it only once in a lifetime.

Naturally, it whipped up a storm of protest from activists, doctors and others who see this as the only way to become parents.

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Filmmaker Farah Khan who married at 40 and had triplets via IVF said that while surrogacy needed to be regulated and surrogates protected and cared for, a law like this will not work as it will force surrogacy to go underground. She wondered why the new act stipulated that only those couples who had been married for at least five years and did not have children could opt for surrogacy. “I do not think any woman is doing it for fashionable reasons,” she said.

Health Minister JP Nadda says that the government had to urgently introduce the law as there were complaints of misuse and there was a PIL in the Supreme Court which asked for urgent steps to be taken to control unethical practices in surrogacy. The Surrogacy (Regulation) Bill, 2016 will be debated before it is ratified by the Lok Sabha and Rajya Sabha.  It is undoubtedly going to be a stormy one as it violates fundamental rights that the constitution guarantees.

It has thrown up numerous questions:

  • Can a law decide the modes of parenthood that one chooses?
  • How can a law stop other nationalities from taking advantage of surrogacy?
  • How can surrogacy be restricted to Indian couples who have been married for a minimum of five years?
  • How can surrogacy be disallowed just because one has a different sexual orientation?
  • Why should a childless couple wait for five years to be able to get a child through a surrogate mother and why should she have to be a close relative of the couple, be married and also have a child of her own?
  • Why should a person of Indian origin who holds an Overseas Citizen of India card be barred from opting for surrogacy?
  • Why are Indian couples barred from surrogacy if they have had children or had adopted them?
  • Can “altruistic surrogacy” work in a country like India where poverty forces women to become surrogate mothers as they have no other social support system which the government can provide?

These are questions that many surrogate mothers at Anand, surrogacy’s Ground Zero, are asking. The small town that became famous as it was the headquarters of the National Diary Development Board that whipped up India’s white revolution is now seen as the surrogacy capital of India. Numerous women there have been surrogate mothers and some have done it more than once because of financial pressures. Surrogate mothers get compensated to the tune of about Rs 4-5 lakh. Foreign couples sometimes pay more.

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Dr Nayana Patel, medical director, Akansha Infertility and IVF Clinic at Anand, has helped over 1,000 couples have children through IVF and surrogacy. She told India Legal: “The new act has been formulated based on a myth that surrogates are exploited. As only relatives can now become surrogates, there will be tremendous emotional and social pressure on them to be selfless to help another relative and not even ask for compensation. Is that not exploitation? Commercial surrogacy must be allowed, and money given to the surrogates should be seen as compensation and not as payment. Surrogacy empowers surrogates as it helps them use the compensation to help their families live better. We have many examples of that. Many couples will now have to accept infertility as a reality without a solution, get a divorce or deal with a second wife that her husband may bring, thereby disturbing the social structure.”

The bill has attracted criticism from surrogate mothers who are mostly from poor families and look at this pregnancy as a means to escape poverty or use the money they thus earned to plan a better future for their children.

While parents who have not been able to conceive look at surrogacy as a way out, many activists feel that commercialism of surrogacy should be stopped. There have been cases where foreigners from countries where surrogacy is not permitted could not take back their babies born in India to a surrogate mother, leading to unwanted complications. There have also been instances of unscrupulous agents duping surrogates and not paying the money promised.

There is no doubt that surrogacy in India needs to be strictly regulated. But the way out is not to have unrealistic curbs that encourage touts as this can be dangerous and hazardous for the mother. A legal framework is necessary, but it needs to be carefully done after a lot of thought and research. Apparently, this draft bill has hurriedly been done after looking at just seven cases of surrogacy in India. They may have been extreme cases like a foreign parent who refused to take the child born with a Downs Syndrome or a foreign couple who took back just one of the twins born saying they could not afford to look after two of them. There are good and bad examples and it has to be looked at in totality.

Pinki Virani’s recent book, Politics of the Womb–The perils of IVF, surrogacy & modified babies, details the dangers and risks around assisted reproduction. She told India Legal: “Any law that prevents the exploitation of Indian women, especially its poorest, is a step in the right direction. India announcing that it no longer allows commercial surrogacy for anybody without any exceptions is welcome. India joins several others in the world, who have banned commercial surrogacy.”

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With this bill, it is not going to be easy to find surrogate mothers as it sets a jail term of at least 10 years and a fine of up to Rs 10 lakh. Rajput said it is not easy to find relatives who will agree to be surrogate mothers as the family would be the first to oppose it.

In 2005, the Indian Council for Medical Research formulated National Guidelines for Accreditation, Supervision and Regulation of Artificial Reproductive Technology Clinics after interacting with stakeholders. It clearly said that there would be no bar to the use of Artificial Reproductive Technology by single women. At that time, the Health and Family Welfare department did not bar unmarried women from opting for artificial insemination with semen from a donor. Children born to a single woman through such a procedure was considered legitimate.

Ironically, while there are restrictions on surrogacy, the Ministry of Women and Child Development is keen on encouraging adoptions by foreigners and pushes for fast-track policies to make it happen. The Juvenile Justice Act (Care and Protection of Children) Act, 2015, permits foreign parents to adopt a child from India. It also allows single parents to adopt children and many Indian celebrities have taken advantage of it. But it bars single males from adopting a girl child.

Critics point out that such seeming contradictions are being followed by various ministries. When Indian law already permits inter-country adoptions from India, how can there be another law that denies the freedom to choose surrogacy as an option to have a child?

Dr Patel points out: “The cabinet’s decision does not appear to be in consonance with constitutional provisions. Article 14 of the constitution guarantees equality before the law and equal protection of laws to all persons. Article 21 guarantees protection of life and personal liberty of all persons. Restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of nationality, marital status, sexual orientation or age, does not appear to qualify the test of equality and has no connection with the intended objectives of the proposed legislation. It is not for the state to decide the modes of parenthood. Constitutionally, the state cannot interfere in the prerogative of a person to have children, naturally or through surrogacy.”

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Let us face it: Poor women saw surrogacy as one way to battle their poverty. The demand for surrogacy will continue. The main difference now will be that surrogate mothers who earlier had the law to protect their interests will no more be able to do so. They will be forced to operate clandestinely and therefore, be unable to avail of legal aid. They will become more vulnerable.

It cannot be denied that some poor, disadvantaged women have been exploited by ruthless agents and even doctors. Many have not got the remuneration promised. But they could use their contracts to ensure they got justice. Now, with the ban, they will have no contracts and will be even more vulnerable.

While social activists would label surrogacy as a crude form of exploitation, the fact remains that the money the surrogates earned helped them to better the lives of their families. It could be better nutrition, school or college fees, a new house, meeting wedding expenses or wiping out a debt.

One would have expected that such a sensitive issue which has numerous parameters would be carefully weighed before a bill is drafted. What it should definitely have included is to ensure protection for the surrogate mother, proper counseling facilities by trained practitioners and a strong regulatory mechanism that would easily sniff out any rackets.