The Surrogacy (Regulation) Bill, 2016, which was cleared by the Cabinet on 24 August, has invited criticism from experts and a section of stakeholders for being over-protectionist and narrow.

The Bill bans commercial surrogacy, permitting only altruistic surrogacy, wherein the surrogate volunteers carry the child without payment for her “service”. Moreover, it limits the circle of choosing a surrogate to within “close” family members. The Bill also bans foreigners from commissioning a surrogacy in India. Experts argue that this essentially kills the practice of surrogacy and completely overlooks the concerns of aspiring parents.

The need for surrogacy regulation arose in 2008 after two-week-old Baby Manji Yamada, born through surrogacy, was abandoned by the commissioning parents following their divorce. After a long legal battle, the baby was entrusted in the care of its grandmother.

Besides, unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes are regularly reported from across the country, according to a government release.

Although criticised for taking a high moral ground on the matter, for the Bill bans homosexuals, singles, and live-in couples from surrogacy, the government makes it clear that its considerations are in favour of the child-bearers.

Surrogates and consent

The surrogates, who are the most crucial link in the assisted reproductive chain, are also the weakest. “As of now, the women who engage in surrogacy are usually poor. They agree to conceive on behalf of another couple in return for a sum of money that would otherwise take many years to make,” The Centre for Social Research writes on its website. The payment for surrogacy could be anything between Rs 70,000 to Rs 6 lakh. “These women generally do not have many career prospects as they are predominately uneducated,” according to the Centre for Social Research.

Often, these women are approached by middlemen who “supply” surrogates to IVF clinics. Ideally, there should be a written contract between the parties concerned in a surrogacy arrangement. But often, even in the presence of such legal arrangements, the women do not know exactly what the contracts entail.

“Compensation is not fixed, and is arbitrarily decided by clinics. There is no attention given to the physical and mental health condition of the surrogate mother,” the CSR report reads.

Whether surrogacy is a “real choice” for these women who turn to it in times of dire need is often debated.

In order to safeguard the interests of the surrogate mother, the government should have enforced signing contracts, making the documents available in all local languages, as well as providing legal, medical and psychological counselling to prepare her for the surrogacy procedure after assisting her in making an informed decision, argues Sonali Bhattacharya, columnist and PhD scholar on Surrogacy laws in India at NLS Bangalore. She was previously an assistant professor at TISS, Mumbai.

“Instead, the Bill provides for altruistic surrogacy with nil payment to the surrogate except for cost related to surrogate pregnancy, but this arrangement only makes the surrogate mother more vulnerable as she who is already the most disadvantaged in the group is forced to practice altruism whereas the commissioning couple gets a child, paid maternity leave (a woman having a child through a surrogate is entitled to maternity leave), doctors get paid fees. This is not pragmatic,” she says.

A means to earn

Backers of commercial surrogacy contend that the practice is an alternative means to earn for many women whose families’ monthly incomes are about Rs 5,000. One successful surrogacy fetches them as much as 60 times the amount, and helps buy a house or send a child through school.

In 2015, when the government banned surrogacy for foreign couples, women undergoing surrogacy and those who had been through it demonstrated outside the Indian Council for Medical Research, demanding freedom to do what they want to with their bodies. A memorandum they submitted then read, “Not all surrogate mothers are exploited. We should be allowed to present a detailed representation on our rights and concerns.”

During her research, Sonali found that places like Anand, Gujarat and Delhi, lead as destinations for surrogacy, with their adequate medical infrastructure, stay arrangements and nurses and doctors available on call.

Nayna Patel’s Akanksha Infertility Clinic in Anand, in fact, is renowned for its IVF facilities. “She even runs a human milk bank to feed the newborns that are born through surrogacy,” says Sonali.

Testimonials of surrogates from Patel’s clinic, according to reports, are positive. Activists and backers of surrogacy point to such voices of consent in support of the practice. Yet, there are women in other parts of the country who do not know the full risks of undergoing the procedure — including the risk of death.

Pinki Virani writes in her book Politics of the Womb: The perils of IVF, Surrogacy and Modified Babies: Commercial surrogates are dying, they have died not just in India but elsewhere too as in America. Are they dying in Africa, Brazil, China, East Europe, Russia? Have they died in Thailand, Nepal? Post-mortems are not routinely performed in after-delivery deaths. Cause of death tends to be noted in medical-ese as the final one presenting itself which proved fatal, for example a heart failure.

Human rights

While the government has framed the Bill purely with the intention to safeguard the interests of the surrogate, detractors have pointed out that it violates the fundamental rights of the commissioning parents. “This outright prohibition appears discriminatory considering the privation of basic inherent human rights including right to health, particularly right to reproductive health, right of choice of means of conception, right to access medical technology (in order to form a family), and right to privacy,” says Sonali.

According to Jayna Kothari, the executive director at the Centre for Law and Policy Research, Bangalore, the rights of the surrogate and the child would certainly take precedence over the rights of the commissioning parents.

“On the issue of the rights of the child, any surrogacy law should include the provision where the child will be able to get the information of his/her biological mother. This is presently not there in any of the draft bills. In fact, there are provisions in the draft bills that provide that the child will not be able to get the information about his biological mother. This goes against the rights of the child guaranteed under the Convention on Rights of the Child (CRC) which provide in Articles 7 and 8 that a child shall have the right as far as possible, to know his or her parents. The draft bills, therefore, place the rights of the surrogate mother as more important that the rights of the child. We need to ensure that the rights of both the surrogate and the child are protected,” Kothari says. 

In much of the debate surrounding surrogacy, there is a loud silence from the most important stakeholders in the process — the surrogates. Upbeat surrogate testimonials in press reports originate from Ananda, where Nayana Patel’s Akanksha clinic is located, but voices from elsewhere are seldom heard.

In Politics of the Womb, journalist Pinki Virani quotes public health consultant Sandhya Srinivasan as saying that “(In matters of assisted reproductive technologies), one view holds that this group of medical procedures increases people’s childbearing choices, but there is a counter argument that they reinforce the oppressive circumstances in which childbearing decisions are made.”

Infertility, by definition, is the failure to conceive after at least one year of unprotected coitus. Although it is recognised as a “disease”, Virani calls it an “illusory” one.

Still, a blanket ban solves nothing, most experts say, as the practice will be driven underground, and the stakeholders the Bill seeks to protect will then be the most vulnerable.

An unregulated industry

Over the last decade, as India was climbing in ranks as one of the most sought after surrogacy destinations, the sector was largely unregulated. This gave liberty to quacks and middlemen to have a free reign in the burgeoning reproductive industry.

As per the 2009 Law Commission Report, the assisted reproduction treatment sector is a Rs 25,000 crore industry.

Yet, even now, there is an absence of concrete data on the number of IVF clinics running in the country, the number of surrogate mothers, or the number of babies born through surrogacy.

Sonali says that several RTIs filed with different stakeholders, too, revealed no records on such data.

The draft Surrogacy (Regulation) Bill now requires all IVF clinics to be registered, and also proposes setting up a surrogacy regulatory board at the Central and state levels.

Legislation: past, present and future

India legalised commercial surrogacy in 2002. “The process of formulation of a Bill has been a decade long, the drafting committee has changed, even the ministries concerned have differed among themselves on the provisions of the Bill,” says Sonali.

Kothari says: “Initially, there was the Assisted Reproductive Technology (Regulation) Bill 2008. Thereafter, the Assisted Reproductive Technology (Regulation) Bill 2014 was introduced which had provisions for surrogacy. Then a Surrogacy (Regulation) Bill 2014 was introduced by a private member — Dr Kirit Solanki. And finally, now, there is a Surrogacy (Regulation) Bill 2016.”

The new Bill permits altruistic surrogacy for heterosexual childless Indian couples who have been married for at least five years, and at least one of the partners have fertility-related issues. In addition to this, the surrogate must be married, between 25 and 35 years old, and she should have already borne a healthy child to be eligible for the procedure. The couple opting for surrogacy should not already have a child, whether biological or through adoption. And surrogacy will be allowed only once, that is a person may act as a surrogate only once and a couple may have only one child through surrogacy.

Ultimately, it bans foreigners from commissioning surrogacies in India, dropping the country’s famous tag as the “Surrogacy Hub” of the world.

The Bill now needs to go through a standing committee before it is presented before Parliament to become an Act.