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Surrogacy is a highly commercialized and exploitative business in India. A proposed law seeks to regulate hospitals and clinics involved in it while protecting the rights of surrogate mothers and commissioning parents     

By Usha Rani Das

When Surabhi, 34, a domestic help in Delhi, learnt from her friend how she had earned Rs 1.5 lakh by becoming a surrogate mother, she was also inspired to make money. She needed it to provide a decent education for her son and daughter. Surabhi approached the International Fertility Centre (IFC) in the national capital and volunteered to be a surrogate mother.

She was soon approached by a young man registered with the clinic. He offered her Rs 3.5 lakh (barring hospital expenses) to be a surrogate mother and she accepted. Hospitalization could mean anything between Rs 50,000 and Rs 2 lakh. But that did not dissuade Surabhi. She is nearly four months’ pregnant and hopes to make a sizeable amount post delivery.

Surrogacy is a highly commercialized industry in the absence of any laws to regulate it. The government has been under pressure to have a legal framework that governs the business. The draft Surrogacy (Regulations) Bill 2016 is meant to fulfil that need. It got the green signal from the law ministry on May 7, 2016 and is before a Group of Ministers (GoM) for consideration.

Though the issue has been debated for quite a while, Bollywood actor Tusshar Kapoor brought the issue to the forefront by becoming the single parent of a surrogate boy in June 2016. Earlier, Bollywood icons Aamir Khan and Shah Rukh Khan had also opted for surrogacy for parenthood. Ironically, one of the main agendas of the Bill is whether single parents should be given the rights of surrogacy.

UNREGULATED MARKET

India is one of the few countries that allow commercial surrogacy. The cheap and unregulated market has made it a major hub and Anand in Gujarat is termed as the “surrogacy capital” of the country. The Indian Council of Medical Research (ICMR) data notes that approximately 2,000 babies are born every year through commercial surrogacy. It is estimated to be a $2.3-billion industry and Gujarat, reportedly, contributes 40 percent to India’s surrogacy industry.

Those who encourage women to rent their wombs would like to see it as a noble act. “Usually society blames the woman when she cannot bear a child. They don’t see that the fault can be with the man too. So, I did a good job helping women in distress,” says Sumathi, who became a surrogate mother in 2008. Indian society is slowly understanding the nobility of the cause and breaking stereotypes. “What if you are not able to bear a child after this? I have a daughter and a son. I don’t want more children,” says 28-year-old Panchi. Panchi is three months pregnant and is happy with the care given to her at the surrogate home of Baby Joy IVF and Surrogacy Centre in Janakpuri, Delhi. She is given proper counselling to make her understand the generosity of her bequest. Counselling is also done so that a surrogate mother does not have any kind of emotional attachment with the baby she has to forego.

DADS WITH A DIFFERENCE: Bollywood actors Aamir Khan, Shah Rukh Khan and, most recently, Tusshar Kapoor have all opted for surrogacy to become a parent
Bollywood actors Aamir Khan, Shah Rukh Khan and, most recently, Tusshar Kapoor have all opted for surrogacy to become a parent

“Surrogacy should not be banned in India. Even foreign couples should not be banned from coming to India for a surrogate child,” Inderpreet Kaur, head of Baby Joy IVF and Surrogacy Centre told India Legal. But there is a darker side to the business and there are several stories of surrogate mothers being exploited and middlemen taking away the money due to them. When corrupt practices come into the picture, then it can be a cut-throat business.

 It was in October 2015 that the government submitted an affidavit in the Supreme Court to allow only “altruistic surrogacy” for needy infertile married Indian couples after their cases are examined by a competent authority. The affidavit had been filed in response to 14 specific issues that were framed by a bench of Justice Ranjan Gogoi and Justice N V Ramana while hearing a PIL on the issue.

“The government does not support commercial surrogacy and also the scope of surrogacy is limited to Indian married infertile couples only and not to foreigners…adequate provisions will be made in the enactment to prohibit and penalize commercial surrogacy services,” stated the affidavit. The government also pointed out that the proposed new law—Assisted Reproductive Techniques (Regulations) Bill 2014—would protect the rights of surrogate mothers and ban foreigners. The Bill is yet to be passed.

It is not clear if the Surrogacy (Regulation) Bill 2016 will replace the Assisted Reproductive Techniques (Regulation) Bill or supplement it. The latter has been pending for over five years and had undergone several revisions at the hands of the ICMR and the Ministry of Health and Family welfare.

Many hope that legality of the parentage of children born out of surrogacy will be settled once the Surrogacy Regulation Bill is passed. Whether the biological parent/s will be considered as the legal parents of the surrogate child is one issue that will be resolved. “Children should get the status in a legal legitimate manner without any exploitation,” says Dr Ranjana Kumari, director of Centre of Social Research India. She adds that this would decrease the cases of pedophiles, traffickers and other abusers who have black-marked the industry over the years.

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The new law will also resolve several other issues related to surrogacy. “It will eliminate cases where the commissioning party refuses to accept twins or a girl child,” says Dr Rita Bakshi, in-vitro fertilization (IVF) specialist at IFC. She adds that her clinic checks police records of both the surrogate mother and the commissioning parents before signing the contract to eliminate any anomalies before, during or after birth.

VULNERABLE AND EXPLOITED

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Beyond the generosity of the cause is hidden the dark truth that lures marginalized and vulnerable women to rent their wombs. Vijaylakshmi from Vyasarpadi in north Chennai, who became a surrogate mother when she was 32 years old, speaks about the exploitation. “A woman broker from my village told me about surrogacy and how it can solve my financial burden. I was promised Rs 2 lakh, but was given only Rs 1 lakh,” she recalls.

In the absence of any concrete laws, surrogate mothers are often promised money in terms of a package, which includes medical expenses, food and accommodation provided by surrogate homes and post-partum care. These terms are not defined in the contract signed between them and the commissioning parents. Some surrogate mothers are uneducated and hence, they cannot verify on their own what is exactly written in the agreement they are signing.

Another area of lack of awareness is the medical problems related to C-Section deliveries—infection and depression. Also the commissioning parents and doctors may go in for unwarranted caesarean births because it is more remunerative for the hospital and the date and timing of the childbirth can be fixed for the convenience of the commissioning parents.

Vijaylakshmi gave birth to a surrogate baby by a Caesarean section, as did the other three women from her community who were lured into renting their wombs. She stayed in the surrogacy hostel for five months during her pregnancy. “During this period, I was taken proper care of, but after giving birth, I was not given any post-partum treatment for my operational wounds,” she said, which again is a mandatory part of the proposed Bill. But doctors at some centers say they allow the surrogate mother to stay on after delivery for about 20-25 days.

According to Hari G Subramaniyam, chief consultant of Indian Surrogacy Law Centre, a Delhi-based specialist legal firm, the Bill can help acknowledge the rights of the surrogate mother and the intended parents in a surrogacy arrangement. Most rights of the parties involved in a surrogacy arrangement are governed by the agreement, which is entered between the surrogate mother, her husband and the intended parents. However, recognizing the agreement can help avoid confusions and complications.

In 2012, the home ministry banned gay couples from accessing surrogacy. While some officials welcomed this move, IVF specialists and activists have questioned it. “I feel that new-age families such as single parents and gay parents must certainly be acknowledged by the upcoming Bill. The right to parenting and to find a family is a basic right. There have been arguments that a child may be neglected in new-age families. It is an argument that makes no sense or does not have any scientific study to support it. However, we must also be able to weigh in the rights of the child to have a stable familial environment to nurture a child. We must bring in checks and balances to ensure that the single parent can actually handle the parental responsibility in its fullness,” says Subramaniyam.

He also supported the transparency of the parentage of a child born out of surrogacy. But he said it can be exploited if definite checks and measures are not put into place now. “Disclosing information outside the surrogacy arrangement would hamper the right to privacy of the parties involved. Intended parents go through so much mental trauma due to infertility. Making it public would only cause further mental agony. They have a right to family like anyone else and must not be targeted,” says Subramaniyam.

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