Various Issues Around Surrogacy in India

Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child but medical condition of the couple makes it impossible or dangerous to get pregnant and to give birth.

The type of medical conditions that might make surrogacy necessary include absence or malformation of the womb; recurrent pregnancy loss and repeated in vitro fertilization (IVF) implantation failures.

Types of surrogacy

There are two main types of surrogacy, gestational surrogacy and traditional surrogacy.

• Traditional surrogacy: In traditional surrogacy, the surrogate mother is impregnated naturally or artificially, but the resulting child is genetically related to the surrogate mother. A traditional surrogate is the baby’s biological mother since the child was conceived from the union of her egg and the father’s sperm.
• Gestational surrogacy: In gestational surrogacy, the pregnancy results from the transfer of an embryo created by in-vitro fertilization (IVF), in a manner so the resulting child is genetically unrelated to the surrogate. Gestational surrogate mothers are also referred to as gestational carriers.

Additionally there are 2 types of surrogacy arrangements:

• Altruistic surrogacy: In this type of surrogacy, the surrogate mother is not paid for her ‘service’. She ‘offers her womb’ as an act of ‘altruism’. Often there will be a pre-established bond between the surrogate mother and the expecting couple. Typically the surrogate mother is a friend or a relative.
• Commercial surrogacy: In commercial surrogacy the surrogate mother receives compensation for carrying the child. Often there will be a mediating party, a surrogacy agency that deals with all the practical arrangements for the commissioning couple: finding a suitable surrogate mother and dealing with all the paperwork etc.

Practices Followed In Other Countries

India remains one of the few countries that still allow commercial surrogacy. It is banned completely in Germany, Norway, Italy, Sweden and Singapore. Only the altruistic kind is allowed in Canada, certain Australian states, New Zealand, the UK, Greece, Denmark and the Netherlands. In the US, some states allow commercial surrogacy, but in a highly regulated environment.

Surrogacy In India

India is called the surrogacy capital of the world with $2.3 billion reproductive tourism industry, 500 legal fertility clinics; of which 350 offer surrogacy services. The mushrooming of IVF clinics, absence of a regulatory framework, and the availability of poor women willing to rent out their wombs has made India an attractive option for foreigners seeking a surrogate child. 70% of surrogacy cases are for foreign clients and the 25% for non-resident Indians and persons of Indian origin. Local Indian couples form only 5% of the clientele. Many customers come from the UK, USA and Canada.

Legal Framework

Commercial surrogacy – which involves paying a woman to carry a couple’s fertilized egg through pregnancy – is legal but unregulated in India. The Indian Council of Medical Research (ICMR) under Health Ministry had finalised the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005. Therefore the business has been left to self-regulate.

Further, in 2008, the Supreme Court in Manji case held that commercial surrogacy was permissible in India. Baby Manji was commissioned by Japanese parents (through an unknown egg donor and the husband’s sperm) and was born to a surrogate mother in Gujarat. The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India. This was the genesis of the Assisted Reproductive Techniques (Regulation) Bill. Thereafter, drafts ART Bills of 2008, 2010 and 2013, was prepared on the recommendations of the Ministry of Law and Justice which has been pending in Parliament and is now expected to be taken up in the upcoming winter session of parliament.

Current Proposals Of The Government.

In an affidavit to the Supreme Court, the government said it would henceforth “prohibit and penalize commercial surrogacy services” that involves exchange of money for anything apart from paying for the medical expenses for the mother and child. Only needy infertile Indian couples would be able to opt for surrogacy of the altruistic kind.

Therefore the proposal would ban foreigners from seeking surrogacy in India. Once the ban gets implemented international clients who form the bulk of customers at hundreds of registered IVF clinics across the country will be barred from renting wombs from surrogate mothers.

Why Ban Is Proposed?

• To prevent exploitation of poor women and protect the dignity of Indian womanhood. Surrogacy fees for Indian and foreign couples are between Rs 11 lakhs and Rs 13 lakhs – and only a quarter of this goes to the surrogate mother.
• To prevent trafficking in human beings and the sale of surrogate children.
• prevent misuse of ART technology
• To advocate safe and ethical practices.

Various Issues Raised By The Proposal

A few of the many issues raised by surrogacy include: the rights of the children produced; the ethical and practical ramifications of the commoditization of women’s bodies without regulation, fraud committed by surrogacy companies; the exploitation of poor and low income women desperate for money; the moral and ethical consequences of transforming a normal biological function of a woman’s body into a commercial transaction.

Should the government implement complete ban or partial ban?

Current proposal has allowed surrogacy only for infertile couples on altruistic basis. Therefore it has raised the debate as to whether the law should ban all commercial surrogacy or impose a partial ban on surrogacy i.e. for certain category of patients.

Critics in favor of proposal argue that government’s view is based on the ethical stand that a child should not be the product of a transaction, and that motherhood should not be commodified. The stand also emanates from health concerns such as the need for the child to be breast-fed for at least six months, or the issues faced by surrogate children born in India once they are taken by commissioning parents to countries that ban surrogacy — or those children who are abandoned due to deformities.

However those arguing against any ban simply claim that it will go underground as the doctors and agents making good money in the chain between intended parents and will not simply give up but carry on. Indian embassies around the world earn fees and it is a lucrative trade for hotels and hospitals. Moreover the rights of the LGBTs, single men or women, couples in live-in relationships, who are proven to be fertile but choose to opt for surrogacy for reasons other than medical has also raised questions about new proposal.

Clearly, India needs a law to regulate what is estimated to be a $2.5 billion industry. For eg: The government’s latest draft of the Assisted Reproductive Techniques (Regulation) Bill seeks to impose heavy penalties on couples who refuse to take custody of a surrogate child born with disabilities, and prioritizes the rights of the surrogate mother. But Complete ban or differentiation between Indian and foreign parents to avail the services of surrogacy is not welcome. It which risks driving surrogacy clinics aimed will only make the entire business run  underground, further endangering both mother and baby. Instead, it should take the pragmatic approach and build in adequate safeguards to protect surrogates, with added checks and balances to prevent exploitation by Indian as well as foreign couples.

Should this thriving industry be left to self regulation?

The trade has been left to self-regulate under the guidelines of the Indian Council of Medical Research requiring that negotiations between surrogates and commissioning parents must be conducted independently between them. However in practice, illiteracy of surrogates act as a barrier to direct communication between the two main parties. Mostly surrogates rely on agents or clinics to explain the nature of the written contracts they sign. In some cases they hardly even get a copy of the contract. The problem gets further compounded when surrogates get into the services without informing there family members. This makes their situation more vulnerable.

Also the surrogates are made to undergo IVF sessions as many as 20 to 25 times to ensure that they are impregnated with a healthy foetus. Many times surrogate mothers died as a result of complications during pregnancy and the unavailability of good post-natal care. There are cases of babies born with disabilities or an unplanned twin being abandoned by the intended parents. On the other hand, the big worry of the intending parents would be that the baby may not be handed over to them.

Then there are issues related regarding citizenship and nationality of the child.

Therefore the need of the hour is to frame a law wherein the rights of the surrogate as well as children are clearly articulated.

Various Ethical issues

Commercial surrogacy involves payment of a fee to the surrogate mother for carrying their baby. This raises various ethical questions ranging from commodification of women to selling of a child. Apart from these issues the basic foundation of the surrogate industry works on unethical practices. Consider if a medical situation were to arise in which the clinician must act either to save the life of the fetus or the surrogate. He has a strong financial incentive to choose on behalf of the paying client, and thus the fetus. Therefore the absence of an independent medical advocate acting on behalf of the surrogate leads to exploitation of women or seeing a woman just as a commodity.

Further the poor, illiterate women of rural background are often persuaded in such deals by their spouse or middlemen for earning easy money. These women have no right on decision regarding their own body and life. Then there are various issues regarding the rights of the child if not taken by the intended parents.

On the other hand it may be argued that achieving parenthood via surrogacy respects the autonomy of the person seeking to become a parent. Further, it may be argued as a matter of social justice, people should not be precluded from having a child because of their lack of access to the contents of conception, either due to medical infertility, sexuality or being single. While there are many religious organizations that frown upon the process of surrogacy, this concept is oftentimes the only option for some individuals to start a family.

Only time will tell how the wishes of the individuals especially  single parents or LGBT will be balanced with the ethical issues raised by surrogacy. But efforts needs to made to at least regulate the industry from becoming more of a commercial racket.