Legalising surrogacy — Boon or bane?
An expert committee has got ready the Draft Bill for legalising surrogacy. After the Union Cabinet’s consideration, The Assisted Reproductive Technology (Regulation) Bill, 2010, will be tabled in the monsoon session of Parliament. Is the proposed legislation giving legal rights to parents and others to have surrogate babies path-breaking? A close look
By Anil Malhotra in The Tribune
THE Union Cabinet will shortly examine the draft Assisted Reproductive Technology (Regulation) Bill, 2010, and then table it in Parliament.
Floated earlier in 2008, it envisages a national framework for the regulation and supervision of Assisted Reproductive Technology (ART). It legalises commercial surrogacy for single persons, married or unmarried couples. When it becomes law, the surrogate mother will have to enter into a legally enforceable surrogacy agreement.
It states that foreigners or NRIs coming to India to rent a womb will have to submit documentation confirming that their country of residence recognises surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. This, perhaps, is in view of the two-year legal battle of the surrogate sons, Nikolas and Leonard, born to the German couple Jan Balaz and Susan Lohlad. The two kids, born to an Indian surrogate mother in January 2008, were rendered stateless with neither German or Indian citizenship. Subsequently, the Supreme Court got them exit permits in May 2010.
Similarly, after being stranded in Mumbai, a gay Israeli couple was granted Israeli passports only after a DNA paternity established in May 2010 that gay Dan Goldberg was the father of Itai and Liron born to a surrogate mother in Mumbai. This followed a debate in Knesset (Israeli Parliament) and the Jerusalem District Court ruled in appeal that it was in the children’s best interest to hold the DNA test to establish their paternity.
Before Parliament passes the Bill, it must be debated thoroughly. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the Bill a compromise in surpassing complicated Indian adoption procedures?
Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries?
The Draft Bill lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with the existing laws. These pitfalls need to be examined closely before enacting the legislation.
In the UK, no contract or surrogacy agreement is legally binding. In most states in the US, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy, whether commercial or not, is unlawful.
What, then, prompts India to plan a legislation to protect the genetic parents, surrogate mother and the child? India’s surrogacy boom began in January 2004 with a grandmother delivering her daughter’s twins. The success spawned a virtual cottage industry in Gujarat. Today, India boasts of being the first to legalise commercial surrogacy soon to legitimise both intra-and inter-country surrogacy.
The would-be parents from the Indian diaspora in the US, the UK and Canada and foreigners from Malaysia, the UAE, Afghanistan, Indonesia, Uzbekistan, Pakistan besides Nepal are descending on sperm banks and In-vitro Fertilisation (IVF) centres in India looking for South Asian genetic traits of perfect sperm donors.
Moreover, renting wombs has become an easy and cheap option in India. Relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and the lack of any law to regulate these practices is attracting both foreigners and NRIs to sperm banks and surrogate mothers.
Surreptitiously, India has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs 25,000 crore today. Clinically called ART, it has been in vogue in India since 1978 and today an estimated 200,000 clinics across the country offer artificial insemination, IVF and surrogacy.
In Baby Manji Yamada’s case (2008), the Supreme Court observed that “commercial surrogacy reaching industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms”. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. Surely, the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy.
In the absence of any law to govern surrogacy, the Indian Council of Medical Research guidelines (2005) for accreditation, supervision and regulation of ART clinics in India are often violated. Exploitation, extortion and ethical abuses in surrogacy trafficking are rampant and surrogate mothers are misused with impunity.
Surrogacy in the UK, the US and Australia costs more than US $ 50,000 whereas advertisements on websites in India give varying costs in the range of US $ 10,000 and offer egg donors and surrogate mothers. It is a free trading market, flourishing and thriving in the business of babies.
The writer is Advocate, the Supreme Court of India and the Punjab and Haryana High Court
A step in the right direction
THE Draft Assisted Reproductive Technology (Regulation) Bill, 2010, is a step in the right direction. It will help regulate the functioning of the in-vitro fertilisation (IVF) centres and make the entire process of surrogacy legal. The setting up of ART banks will ensure quality check and accountability.
Everything would be in black and white and legal redressal for any failures will be possible. At present, there is no accountability of the IVF centres as they can deny everything as legally they don’t even exist.
However, with things becoming easier and legal, people might become overenthusiastic and have a baby for which they are not emotionally prepared on a long-term basis. Neglect and abuse of these children is an issue of concern and a mechanism should be put in place for monitoring their progress by social agencies.
— Dr Anju Huria, Gynaecologist, Chandigarh
Repugnant to human dignity
It is inconsistent with human dignity that a woman should use her uterus for financial profit and treat it as an incubator for someone else’s child. These words of the Warnock Committee reporting to the British Government in 1984 remain unanswerable even today. The proposed Bill, however, legalises not only surrogacy per se but even commercial surrogacy or surrogacy “for monetary compensation” or “on mutually agreed financial terms”.
Whatever the intentions, its inevitable consequence would be the creation of a market specialising in the sale and purchase of babies, or as the Court of Appeal in England put it in 1985, in “a kind of baby-farming operation of a wholly distasteful and lamentable kind”. The only proper way to pursue the Bill would be to abandon it.
— Anupam Gupta, Senior Advocate, Punjab and Haryana High Court
Negative impact on society
For infertile couples wanting to have children, the ART would make things easier as regulations will be there for the entire process. But if it encourages single parenthood, it will not be in the interest of the children born out of such an arrangement and thus will have a negative impact on society.
Family togetherness, in traditional terms of having a father, mother and brother/sister, is important for the upbringing of any child and the same cannot be provided by gay or lesbian couples or individuals. Children born to such couples or individuals may lack confidence. It will definitely affect the children in the long run.
— Dr B.S. Chavan, Head, Psychiatry Department, Govt Medical College Hospital, Sector 32, Chandigarh
Don’t keep doctors out of the loop
Those who would run ART banks will not be professional doctors and hence won’t be able to make the right decision. They will not have clinical knowledge about the quality of semen or oocytes.Doctors alone can run the IVF clinics. Keeping them out of the loop will not be in the interest of either the surrogate mothers or those hiring them.
— Dr Umesh N. Jindal, Jindal IVF and Sant Memorial Nursing Home, Sector 20, Chandigarh
Rent a womb: The proposed legislation
- Renting of womb is legal in India but there is no law at present to regulate surrogacy. If Parliament passes the Assisted Reproductive Technology (ART) Bill, renting a womb by Indian and foreign couples looking for surrogate mothers is expected to become hassle-free.
- The Draft Bill gives gays, singles the legal right to have surrogate babies. It defines a ‘couple’ as two persons living together and having a sexual relationship. After the Delhi High Court verdict on homosexuality, even two gay men can claim to be a couple.
- A woman in the age-group of 21-35 can become a surrogate mother. She will be allowed five live births, including her own children. She will not be allowed to donate oocytes more than six times in her life.
- In case of a single man or woman, the baby will be his/her legitimate child.
- A child born to an unmarried couple using a surrogate mother and with the consent of both parties shall be the legitimate child of both of them.
- During the gestation period, the couple will bear the surrogate’s expenses and give monetary help to her. The couple may enter into an agreement with the surrogate.
- Foreign couples must submit two certificates — one on their country’s surrogacy policy and the other stating that the child born to the surrogate mother will get their country’s citizenship.
- Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation.
- ART banks, accredited by the government, will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor.
- State boards will give accreditation to ART banks — private and government. The board will have a registration authority which, in turn, will maintain a list of all In-vitro Fertilisation (IVF) centres and monitor their functioning.
- The Law Commission of India (2009) described ART industry as a “Rs 25,000-crore pot of gold”. It recommended only altruistic surrogacy arrangements and not commercial ones. But the Draft Bill legalises commercial surrogacy as well.