Surrogacy Bill: India

What does the Bill cover?

The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples.

The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and ‘appropriate authorities’ in the State and Union Territories. The Bill shall apply to whole of India, except the state of Jammu and Kashmir.

Altruistic surrogacy will be allowed only for infertile Indian married couples, not NRIs or OCI card holders. Single parents, homosexual couples, live-in relationships couples will also not be allowed altruistic surrogacy.

Ethical surrogacy to the needy infertile couples will be allowed on fulfilment of certain conditions and for specific purposes. The couple must be married for at least five years and will have to produce a medical certificate testifying that either partner is medically unfit to produce children.

Commercial surrogacy will be prohibited, including sale and purchase of human embryo and gametes.

The rights of surrogate mother and children born out of surrogacy will be protected.A surrogate child, whether boy or girl, cannot be abandoned by parents. The child will have all the rights that a biological child has, including right to property. A surrogate mother cannot be mistreated by the clinic or the parent couple.

The bill makes it mandatory for surrogate mothers to be married, be a close relative of couple wanting a child, and must have given birth to a healthy child before becoming a surrogate mother.A woman can only be a surrogate mother once in her life.

Surrogacy clinics must be registered with the government. If clinics are found to be illegally operating, or flouting norms, the owners may be punished with 10 years’ imprisonment and/or Rs 10 lakh fine. Clinics are also required to maintain each case record for 25 years.

Why was this Bill necessary?

India has emerged as a surrogacy hub for couples from different countries, and in the absence of a statutory mechanism to control commissioning of surrogacy at present, there have been reported incidents concerning unethical practices, exploitation of surrogate mothers, abandonment of children born out of surrogacy and rackets of intermediaries importing human embryos and gametes.

There have been past cases where couples took home one child from a twin birth or couples left a disabled baby with the surrogate.

Although in 2005, ICMR (Indian Council for Medical Research) issued guidelines for accreditation, supervision, and regulation of Assisted Reproductive Techniques (ART) clinics in India, these guidelines are repeatedly violated as they are not legally binding.

The 228th report of the Law Commission of India has also recommended prohibiting commercial surrogacy and allowing ethical altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation.

The legislation will prohibit potential exploitation of surrogate mothers and children born through surrogacy.

When does surrogacy seem unethical?

The ethical issues of surrogacy arise from the situations of uncertainty that exists with the whole process.

In a surrogate situation, the gestational mother is the woman who carries the baby to term. This can be a very taxing process both physically and emotionally – and unique in that after the surrogate mother physically carries the baby throughout the pregnancy, she needs to physically and emotionally detach herself from the child once it is born. There is no way for the surrogate mother to know while signing the contract if she will be able to detach herself from the child once it is born till it is born.

The commercial model for maternal surrogacy holds that a contractual relationship is forged between the client (usually a woman or couple from a wealthy country), the clinic, and the surrogate. But from a medical perspective, the clinician is directly responsible for the care of both the client and the surrogate, though he or she is being paid by just the client. This is clearly a conflict of interest. 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. The absence of an independent medical advocate acting on behalf of the surrogate immediately nudges this relationship into the realm of exploitation.

In India, given that the surrogate is often quite poor, uneducated, and semi-literate, it seems unlikely that she is even aware of the dangerous nature of her unequal status in this commercial relationship. This vulnerability further complicates the proper receipt of true informed consent.

The poor, illiterate women of rural background may often be 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. In India, there is no provision of psychological screening or legal counseling, which is mandatory in the USA.

Where does the criticism of the Bill come from?

The Bill is too stringent for its implementation to be realistically possible. The fear is that this bill will end up creating an underground surrogacy network in India which will end up compromising the rights and health of the surrogate mother even more.

“How will you implement a complete ban? This is a situation akin to the organ racket in India where though it is forbidden it still thrives illegally,” says Ranjana Kumari of Centre for Social Research. “We wanted rights of the surrogate secured, removal of the middle-man etc. However the Bill in its current form is an extreme one. We have taken four steps backwards today,” fumed Kumari.

The medical community is unhappy with the decision. Dr Sharda Jain, secretary-general of the Delhi-Gynae Forum who also runs an IVF clinic, thinks that the bill impinges on the ability of people to make a choice. “If we have the technology, we have the know how and the rights of the surrogate mother are secured, then where is the issue?”

Who will be affected by the bill?

A woman consenting to carry a pregnancy to term for money was an option for a means of livelihood, undertaken often at great personal cost, but which nonetheless granted the woman the right to use her womb (the way other professions require her to use other parts of her body) to earn money. By shutting down commercial surrogacy, instead of helping the woman apply her agency in a more equitable environment, takes it away altogether.

Surrogacy mothers had held protests last year against the government's plans, saying they would be denied an income, usually about US$5,000 per pregnancy, a huge sum in India where millions live in grinding poverty.

Single men and women, heterosexual couples who choose not to opt for marriage, gay couples, queer women, transgender persons are all prohibited from being able to avail surrogacy to start a family.

By excluding whole sets of people from the ambit of surrogacy, the bill betrays a discriminatory attitude towards them.

The present draft would impact medical tourism in the country. The multi-million dollar surrogacy industry will be completely impoverished with the new bill as it bans any form of commercial surrogacy.

How big is the market for surrogacy in India?

In 2012, the surrogacy business was estimated to be worth more than $400 million a year, according to a report backed by UN. Across India, but mostly clustered in Maharashtra and Gujarat, maternal surrogacy is an exploding industry.

Ranks of childless foreign couples have flocked to the country in recent years looking for a cheap, legal and simple route to parenthood.

Surrogate mothers, according to several reports, would get paid anywhere between Rs.70,000 to Rs.3 lakh for a pregnancy which made it a very lucrative option.

Some 2,000 infertile couples hire the wombs of Indian women to carry their embryos through to birth every year, according to the government.

Russia and some US states are among those that also allow commercial surrogacy. But India's clinics charge couples between US$20,000 and US$30,000, a fraction of the price in the United States which explains the flocking of couples to India.

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