UNBRIDLED BABY MAKING INDUSTRY : CRATER IN THE INDIAN JURISPRUDENCE
– Dr. Manpreet Kaur Rajpal1
In India in Socio-Legal context specially, Children are a kind of old age insurance. If marriage is a personal choice monitored by social practices and obligations in India, so is motherhood; to not become a mother is rarely a matter of personal choice and in the least, encouraged.
The Parents construct the Child biologically,
While the Child constructs the Parents socially.
In the conundrum of familial pressure, concerns over genetic progeny and continuation of property rights of a group of persons who are genetically related to each other, not having a ‘next generation’ has made persons look to alternative remedies for continuation of the bloodline. And here, Surrogacy”THE RENTED WOMB” springs in as a savior to the Childless Couple.
In India, Surrogacy marked its inception in late 90’s. At the outset it marked its existence in metros only. But with march of time & progress of society it has became a booming business in India. You can easily find news pertaining to Surrogacy in Print & Electronic media very often. Commercial Surrogacy is legal in India. The availability of medical infrastructure and potentialsurrogates, combined with internationaldemand, has fueled the growth of the industry.
But the Stark Contradiction is that though the concept of Surrogacy has been ushered in India, but it’s very unfortunate that till now, Parliament has not brought forward any proper legislation to deal with it. Matters relating to Rights of Child, Surrogate Mother etc needs protection of law and if proper laws are not enacted then this can prove to be the bone of contention which can be witnessed in many cases pertaining to the same.
My research paper throw light on the current legal scenario of surrogacy in India. It highlights the legislative developments in a lucid manner which can further help all the parties involved in the process of Surrogacy to understand the legal challenges which they may face if they opt for Surrogacy.
Surrogacy is not a new concept, indeed, traditional SurrogacyArrangements2 can be traced back to biblical times.3 However, the booming global surrogacy “business” we see today appears to have evolved rapidly within the last decade or so.4 This can be attributed to a convergence ofscientific, demographic, legaland social developments. Surrogacyor Surrogate means “Substitute”.5 The word ‘Surrogate’ has its origin in Latin ‘Surrogatus’, past participle of ‘Surrogare’, meaning a Substitute, that is, a person appointed to act in the place of another.6
In medical terminology, Surrogacy indicates an arrangement whereby a woman agrees to undergo the pregnancy, labor, and delivery for another individual who either cannot or chooses not to. Thus, a Surrogate Mother is a woman who bears a child on behalf of another woman, either from her own egg or from the implantation in her womb of a fertilized egg from other woman.
INDIAN LEGAL SCENARIO
India is emerging as a leader in International Surrogacy and a sought after destination in Surrogacy-related fertility tourism. Surrogacy in India is a hot topic right now. With adoption becoming legally more difficult, and greater awareness of Surrogacy as an option, manycouples and even individuals that cannot otherwise bear children are increasingly turning to Surrogacy as a possibility to fulfill their parenthood dreams.
There are varied causes of infertility amongst men and women; as a result this makes every case an entityin itself. Treatment to each couple cannot be generalized it varies and so also the success rate which declines with advancing woman’s age. The recent advances in ‘Assisted Reproductive Technology’ has increased the overall success rate from 17% in the past to reach 45% recently. Repeating the attempts results in better success rate which reaches 70- 80% in four attempts collectively and this is the reason childless couples are opting for the latest Assisted Reproductive Technology in infertility treatment especially Surrogacy.
In general, couples first investigate Surrogacy in their home country. Some couples find that either the cost, or their country’s legalenvironment, makes it very difficult to pursue Surrogacy and then start investigating options for Surrogacy abroad.7 The most common overseas option is Surrogacy in India, although there are other options. The Intended parents are interested in the low costs of International Surrogacy, and many are considering a Surrogate pregnancy in India. Indian Surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost.
Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as Surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK. The low cost of Surrogacy is one of the prime reasons which attract the foreigners. No doubt, Surrogacy is earning us a lot of dollars but there is always a probability of exploitation and malpractices in it. And therefore, the umbrella of legislation is needed to protect Surrogacy.
Legislation on Reproductive Technologies provides the means for preventing their misuse. However, the implementation of the Acts related to Reproductive Technologies raises several legal, ethical, moral and social issues. Human experience has shown that mere legislation against undesirable practices generally does not prevent them; such practices being pushed to the back-alleys. Legislation must be armed and strengthened by measures aimed at bringing about a sea change in societal perceptions of the female child and women in general.
The practice of Surrogacy in India has widely increased in last decade. And looking into the augmenting rate the Indian Government has taken few steps to regulate the industry. But they are insufficient to curb the immoral practices which are growing in guise of Surrogacy. Now, let’s study the Legislative Developments on Surrogacy in India in detail till Date.
In India, the Government has taken certain steps to address the issues relating to Surrogacy and to regulate the Surrogacy arrangements from time to time. But unfortunately till today there is no act which governs Surrogacy. The Indian scenario in this field is quite bleak. Delhi Artificial Insemination (Human) Act 1995 is the only statutory act prevailing in India.
In India, Surrogacy got in vogue in last decade. India’s first Surrogate baby was delivered on June 23rd, 1994, but the practice started receiving widespread international attention in 2004
PYRAMID : LEGISLATIVE DEVELOPMENTS
when an Indian woman delivered a Surrogate child for her daughter in the United Kingdom. Surrogacy in India gained more attention in 2007, when Oprah featured a U.S. couple pursuing surrogacy in India during her daytime television program.8 And in last couple of years the scenario in surrogacy industry has capsized. Looking into the rising number of cases the Indian Government initiated certain measures to prevent its misuse, which can be apprehended by the Pyramid below:
ICMR GUIDELINES : 2005
India has witnessed an unprecedented and unregulated growth of IVF/Infertility/Assisted Reproduction Technology (ART) clinics and hospitals. With the estimated number of around 3000 clinics across the country and new clinics being added every day, India has occupied a place of prominence on the world IVF map. At presnet, there are several clinics that perform such services, gauged by the number of advertisements in the local media as well as on the internet, it is easy to select a clinic.
However, the real problem arises after the birth of the baby. In India, in the absence of any clear laws on the issue so far, foreigners are unable to get legal assistance when it comes to taking their child back to their home country. Childless couples in India, too, face some issues.
For example, whose name will be mentioned as parents on the birth certificate of the newborn or what should be done in case the Surrogate mother refuses to hand over the child? To lay such doubts to rest, the Government of India had taken certain steps including the introduction and implementation of National Guidelines for Accreditation, Supervision, and Regulation of Assisted Reproductive Technology (ART) Clinics in 2005, and guidelines had been issued by the Indian Council of Medical Research (ICMR) working under the Ministry of Health and FamilyWelfare, Government of India9 after extensive public debate across the country involving all stake holders.
Under these guidelines, there was no legalbar for the use ofAssisted Reproductive Technology (ART) by a single or an unmarried woman, and the child born would have legal rights on the woman or man concerned. Though, the guidelines were non statutory but still clinics that provide ART facilities take recourse to the guidelines set by the Indian Council for Medical Research that state that the ‘Surrogate Mother’ has to sign a contract with the childless couple. But even then, counter lawyers, it is not clear whether such a contract has any legal sanctity.
The “National Guidelines for Accreditation, Supervision and Regulation of ART clinics in India”10 were drafted by a Committee of Experts by including specialists from various disciplines such as biologists, gynecologists, social/legal representative and representative from ART Clinics, which was formed by the collaboration of The Indian Council of Medical Research, New Delhi and National Academy of Medical Sciences, New Delhi. This code consists of guidelines about important issues affecting Scientists, Doctors and Patients. In dearth of any enactment, the clinics are following these Guidelines till today but as theyare Non Statutory so it totally depends on the sweet will of the clinics whether they follow it or not.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (ART) REGULATION BILL, 2008
The favored ‘Surrogacy Destination’ of the world, India, must have laws to back the business of Surrogacy and IVF as the issues relating to Surrogacy are complex and very complicated. However, till 2008 there were no legal provision dealing directly with Surrogacy, to govern the matters relating to the rights and interests of the Surrogate Mother, the Child, or the Commissioning Parents.
The Government apparently planned to bring in new legislation to regulate Commercial Surrogacy and for the first time after a long wait for so many years, an expert team from the Indian Council of Medical Research (ICMR) came out with a Draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008, which was to be proposed in the Parliament. The Draft (ART) Bill, 200811, was posted on the websites of the Indian Council of Medical Research (ICMR) and the Ministry of Health and Family Welfare for comments from the general public. It was followed, and drawn, from, the functional and ethical National guidelines for Assisted Reproductive Technologies (ARTs) issued by the ICMR in 2005.
The draft bill contained 50 clauses which were divided into nine chapters. The Bill acknowledges Surrogacy agreements and their legal enforceability so that ‘Surrogacy Agreements’ were to be treated on par with other contracts and stated that the principles of the Indian Contract Act 1872 and other laws shall be applicable to these kinds of agreements. The Bill further provided that single persons may also opt for Surrogacy arrangements.
The draft bill binds commissioning parents to bear all medical expenses, including insurance, of the ‘Surrogate Mother’while she is carrying the child in her womb. It further stated that the ‘Surrogate Mother’ may “receive monetary compensation from the couple or individual, as the case may be”, but “shall relinquish all parental rights over the child” once it is handed over to the Commissioning Parents.12
It also include the provisions stating that the child’s birth certificate shall bear the names of his or her genetic parents. It very clearly mentions the age of the woman who can opt to be a Surrogate Mother. According to it the woman shall be not less than 21 and not more than 45 years of age. She should be medically fit and cannot act as a surrogate more than three times, while records of all envisages a regulatory mechanism comprising a registration authority for ART clinics, with state and central advisory boards over it.
The news reports suggest that the bill was meant to protect couples seeking the technology from exploitation byunscrupulous medical professionals13 an unethical marketing practices of ART clinics. It also purports to regulate surrogacy and respond to social and ethical issues around parenting associated withARTs. But the irony was that the draft bill was badly criticized and was claimed that the draft has simply been drawn to strike balance between commercialization and function of motherhood. Aclose inspection ofthe bill suggests that it is not meant to protect the rights of Surrogates and the child.
On the contrary, the intention seems to be, to protect clinics from complaints in social disputes such as who the “Real Parent” of the child is. It does not protect women from dangerous technologies. It dwells on the infrastructure for clinics but underplays the side effects of the procedures.
It specifies who may access the technologies but is unclear about whether these technologies are actually treatments for infertility. It also tries to safeguard the rights of the”Commissioning Couple”.14 Thereafter, considering the criticism the draft ART Bills of 2008 was revised based on the recommendations of the Ministry of Law and Justice.
228TH REPORT : THE LAW COMMISSION OF INDIA, 2009
Surrogacy was held to be legal by the Supreme Court of India in Manji’s case of Japanese Baby in 2008, with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. The Assisted Reproductive Technology (ART) Regulation Bill, 2008 was still pending at that time. Looking into the gravity of the matter the Law Commission of India intervened, and specifically reviewed the Surrogacy Law keeping in mind that India is an International Surrogacy destination.
International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, giving due regard to the concerns and in order to prevent the commercialization of the Human Reproductive System, exploitation of women and the commodification of children, The Law Commission of India submitted the 228th report on”need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy.” The following observations had been made by the Law Commission :
• Surrogacy arrangement will continue to be governed by contract amongst parties. But the arrangement should not be for commercial purposes. It shall contain various terms pertaining to the consent of surrogate, her husband and other family members, the compensation to be paid, the procedure to be followed etc.
• A Surrogacyarrangement should provide for financial support for Surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the Intended parents and subsequent willingness of none to take delivery of the child.
• A Surrogacy contract should necessarily take care of life insurance cover for Surrogate mother.
• One of the Intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Not only that, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will also be reduced.
• Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian.
• The Birth Certificate of the surrogate child should contain the names ofthe commissioning parents only.
• Sex-Selective Surrogacy should be prohibited & Right to Privacy of donor as well as surrogate mother should be protected.
• Cases of abortions should be governed by the Medical Termination of PregnancyAct 1971 only.
The Law Commission is staunchly against commercialsurrogacy, though it has come largely in favor of Surrogacy in India. It has addressed issues like proper way of operating Surrogacy in Indian conditions. Another issue which is the concern of Law commission is Exploitation of the Surrogate.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (ART) REGULATION BILL, 2010
Taking into consideration the prevalence of Surrogacy in India and its related challenges as well as controversies, the Government of India formed a committee of experts to make draft for the Surrogacy and ART in India. This Expert committee submitted a copy of the proposed Assisted Reproductive Technology (ART) Regulation Bill, 2008 to the Government. The committee tried to cover the important and necessary dimensions of surrogacy. This bill was pending with the government and was not presented in the Parliament.
Irrespective of no legislation for the regulation of Surrogacy, the process was completed in a crystal clear and ethical manner; keeping into consideration the guidelines by ICMR. Looking into the growing cases of Surrogacy finally this bill was revised. The Ministry of Health and Family Welfare, Government of India drafted the revised bill “The Assisted Reproductive Technologies (Regulation) Bill ,2010”.
Floated earlier in 2008, it envisages a National framework for the regulation and supervision ofAssisted Reproductive Technology (ART). It legalizes ‘Commercial Surrogacy’ for single persons, married or unmarried couples. The bill provided various guidelines for ‘Surrogate Mothers’ and ‘Intended Parents’. It proposed stringent guidelines for foreigners and Non Resident Indian couples opting for Surrogacy in India.15
There were many cases hitting the headlines of newspaper which hustled the Government to revise the bill. One of such case was of the Gay Israeli Couple. 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.16
In Nutshell, the newART Regulation Bill and Rules 2010 by the Government of India proposed to guarantee legalprotection to the parties involved and mandate legally enforceable agreements between stakeholders; violation would be a cognizable offence punishable with imprisonment and fine. It was expected that legislation regarding surrogacy in India will become stronger after this bill is passed, thus ensuring fairer practices. But unfortunately this bill was badly criticized claiming that it does not adequately provide for the rights and welfare ofthe Surrogates and therefore was again revised.
THE ASSISTED REPRODUCTIVE TECHNOLOGY (ART) REGULATION BILL, 2013
Surrogacy in India continues to grow by the day; the proposed law to regulate it continues to remain in incipient stages. The present guidelines are a consequence ofthose originally framed by the Indian Council of Medical Research (ICMR). However; these do not have any legal sanctity and are not binding. The present Assisted Reproductive Technology(Regulation) Bill, 2013, was the revised version of the 2010 bill.
The draft bill 2013 is an exhaustive document containing 100 sections addressing various issues relating to ART. The draft Bills and Rules of2008 and 2010 were extensively circulated for public opinion, besides being sent to State Governments, institutions, statutory bodies, NGOs, medical professionals and other stakeholders, but the 2013 Bill was not circulated or placed in the public domain.17 Women’s health activists asked the Centre not to rush into finalizing the ‘Assisted Reproductive Technologies (Regulation) Bill, 2013’ and, instead, hold wider deliberations with women’s rights organizations, queer rights, human rights and legal rights organizations across the country.
The Sama Resource Group for Women and Health, while appreciating the initiative of the Union Ministry of Health and FamilyWelfare (MoHFW) for making efforts to regulate the boo ming Assisted Reproductive Technologies (ART) industry, including Commercial Surrogacy, in the country, said though the Bill acknowledges the importance and significance of ethical practices in the context of ART services, in the present form, it is inadequate in protecting and safeguarding the rights and health of women going for IVF techniques, recruited as ‘Surrogates’ and children born through Commercial Surrogacy.
Many Public Spirited Lawyers and Medical Experts after perusal of the draft bill suggested that the bill must include provisions to regulate and monitor the different players in Surrogacy arrangements. Further it was claimed that it lacks setting the standards for medical practice and completelyignores the regulation ofthe third party agents who playpivotal role in arranging Surrogates such as Surrogacy agents, Tourism operators and surrogacy home operators.18
Various SocialActivist criticized the draft bill and said that even if we acknowledge the initiative of the Union Ministry of Health and Family Welfare and the ICMR in coming up with the draft ART (Regulation) Bill, 2013, we think that instead of regulating the providers of the technology and safeguarding the rights and interests of the Surrogate Mothers, some of the Bill’s clauses tend to promote the interest of the private-sector technology providers. The Bill should have incorporated provisions to prevent misuse and malpractice, thereby making the providers accountable to the Surrogates and the laws of the land, but in its present form, it comes across as inadequate in protecting and ensuring the health and well-being of Surrogate Mothers.
Finally in the meetings of Departments and Ministries of the Government of India on 6th and 7th March, 2014 to discuss and review divergent views on the Draft Assisted Reproductive Technology (Regulation) Bill, 2013 (ART Bill, 2013), have resulted in a proposal to revise the draft ART Bill with significant changes.
The most crucial proposal is to restrict Surrogacy in India to “infertile Indian married couples” only and it would not be allowed to foreigners unless he/she is married to an Indian citizen19 Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) shall, however, be eligible. The object sought to be achieved is to prevent exploitation of Indian women who may be tempted to take the risk in the face of financial hardships.
THE SURROGACY (REGULATION) BILL, 2014
An individualMemberof Parliament has takeninitiative to introduce a billfor regulating Surrogacy in the Lok Sabha, known as the house of commons or the lower house of the Parliament. The Bill No. 61 of 2014 named ‘The Surrogacy (Regulation) Bill, 2014’ was introduced in the Lok Sabha on 08/08/2014 as gathered from the Lok Sabha website. This Bill was introduced by Dr. Kirit Premjibhai Solanki, MP from Gujarat. Incidentally this bill was never able to be presented in Parliament.
THE SURROGACY (REGULATION) BILL, 2016
In the past, numerous bills have been drafted only to never be presented in Parliament. However, the Surrogacy (Regulation) Bill, drafted in 2016 and reported extensively, has seen more active response, reaching the Prime Minister’s office. Exactly after two years later, the bill is in the process of being amended.
If passed, the Surrogacy (Regulation) Bill would ban commercial surrogacy in India. It states that any couple could be able to become parents via surrogacy only if they were a heterosexual Indian couple between 23 to 50 years for the woman, and 26 to 55 years for the man who have been married for more than five years with proof that at least one of them is infertile, and the surrogate is their close relative between 25 to 35 years who is married and has at least one child of her own. The only money you could offer would be the payment of her medical expenses. If the couple has been married less than for five years, or are older or younger than that age range; if you’re single, if you’re foreign, if you’re cohabiting but unmarried, and if you’re gay, you’d be out of luck.
Ostensibly to prevent exploitation of underprivileged women, an admirable goal, the bill is clearly flawed. And unfortunately, the only amendments that appear to be under discussion are provisions for Non-Resident Indians (NRIs) and Overseas Citizen of India (OCI) (as well as people within the now defunct persons of Indian origin system) assuming, of course, these couples are heterosexual, fit the age range, have proof of infertility, have been married for at least 5 years and have a close female relative who is married with a child and doesn’t mind getting knocked up without any kind of recompense.
Surrogacy is a boon to the infertile couples but at the same time it carry’s social stigma in the society as it is equated with prostitution and blemished on the ground of commodification of child and by virtue of that it is argued that it should be disallowed on moral grounds. Surrogate mothers are kept in isolation from families and allowed to meet families in weekends, which are against the human rights. There are number of ethical, social, legal and psychological issues associated with surrogacy, which require urgent need for framing and implementation of law.
With no legitimate laws in India for Surrogacy at National as well as State level, it has become a matter of great debate. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then no law permits Surrogacy either. In the absence of any law to govern Surrogacy, the Indian Council of Medical Research Guidelines (2005) for accreditation, supervision and regulations of ART clinics in India are often violated. Exploitation, extortion and ethical abuses in surrogacy and trafficking are rampant and Surrogate Mothers are in maximum cases misused with impunity.
Amrita Pande is right that a law is required to regulate Commercial Surrogacy particularly to avoid conflict with pre-existing laws for example, the money paid to the Surrogate Mother is potentially in violation of Sec. 17 of the Hindu Adoptions and Maintenance Act (1956) which bars payment or other reward in consideration of the adoption of any person. Her concern about the final form is that the primary purpose of such law shall be to protect Gestational Mothers from possible exploitation.
“With the country becoming a Hub for Surrogacy, there is an urgent
need for a stringent legal framework to regulate it. The unregulated
eproductive tourism industry of ‘Procreating’ through surrogacy is
rapidly increasing in India, while there is still no legal provision to
safeguard the interests of all the major stakeholders involved in the
Surrogacy arrangement, i.e., the Surrogate Mother, the Child or the
Commissioning Parents,” said Dr. Kumari.20
In the absence of any potent national legislation and inconsistent state policies globally, how such internationalagreements give effect to and shape the industry, is a matter ofgrave concern. After considering the history of legislative development on surrogacy it’s not an exaggeration to saythat the Government of India and various states shall soon bring in legislation to regulate the rent-a-womb business which is thriving in India. And it becomes incumbent upon neutral bodies to ensure that ethical guidelines are adhered to and also to bring to light any violations. For this, well-formulated guidelines drafted with foresight and long-term perspectives are essential.
In nutshell, The current scenario of surrogacy in India definitely calls for regulation, for the sake of children, birth mothers and commissioning parents ensuring that the rules made are more equal and accessible for all hopeful parents. Here’s hoping the Government finds it.