The Surrogacy (Regulation) Bill 2016, which hopes to discourage and arrest rampant commercial practice, has courted controversy, with people seeing it as a departure from the fundamental right of choosing modes of parenthood and infringement of privacy. Women’s rights activists are opposing the Bill on the grounds that it “shackles” a woman’s right to be a mother while doctors are worried that the Bill is a double-edged sword, which may fail to deliver the results the government is expecting.
On the other hand, a few voices feel that the Bill focusing on this assisted reproductive practice will curb exploitation of surrogates as well as parents to-be. Clearly, opinion on this sensitive subject is divided.
The Bill approved by the Cabinet on 24 August comes with a lot of riders. From banning unmarried couples, single parents, live-in couples to homosexuals, the Surrogacy (Regulation) Bill 2016 also bars married couples who already have a biological/adopted child of their own (either boy or girl). During the press briefing on the bill, External Affairs Minister Sushma Swaraj also informed that foreigners, NRIs and PIOs who hold Overseas Citizens of India (OCI) cards have also been barred from opting for surrogacy as “divorces are very common in foreign countries”. Further tightening the grip on surrogacy, and what the government views is a giant leap in regulating this alternative of having children, the Bill allows only ‘close relative’ to be a surrogate, that too only once. It is also mandatory for the surrogate to have at least one child of her own, completely closing all possibilities of unmarried/childless women to be one. The couple opting for surrogacy must be married for at least five years with no biological or adopted children of their own. The husband must be 26-55 years of age and the wife must be 23-50 years.
The Bill only permits altruistic surrogacy, which means no monetary exchange, hence, cracking down on paid or commercial surrogacy, which has become a thriving business of late. Renting a womb will result in 10 years jail and a fine up to Rs 10 lakh. In another salient feature, the surrogate clinics will be governed by state and national committees and will also have to maintain a record of at least 25 years. Commercial surrogacy has grown phenomenally in India in the past decade and a half since it became legal in 2002, and in the absence of stringent guidelines like that of Central Adoption Resource Authority, largely unchecked. It is now estimated to be a booming $2-billion industry, with majority (almost 80 percent) of its business attributed to foreigners. Childless couples from across the globe — USA, Australia, Japan, Germany — have been heading to India in the hope of enjoying the bliss that comes with parenthood. According to reports, the cost of having a surrogate baby in India is one-third that in the US and other western countries, hence making India a favourite destination. Anand district in Gujarat, whose only claim to fame till few years was Amul Dairy, has gained prominence for record number of surrogate babies (around 1,000), thanks to on clinic, the Akanksha Infertility Clinic.
Commercial surrogacy has grown phenomenally in India since it became legal in 2002. In the absence of stringent guidelines, it has become a booming $2b industry
While human rights activists will bare their fangs on this exploitative arrangement, stories abound of women who have pulled their families out of the drudgery of poverty by opting to be a surrogate. The underlying sentiment was the same: money. The cost of renting a womb can range from Rs 2 lakh to Rs 4 lakh, sometimes excluding the medical expenses and post-delivery care. This is what the Centre is optimistic of addressing once the Bill is passed and enacted into a law, hoping to form a safety net around the mother to-be and the unborn. Dr Vandna Narula, in vitro fertilisation (IVF) specialist, who heads the IVF and infertility centre of Cosmo Hospital, Mohali says that the biggest beneficiary of the Bill will be the child. “Parents abandon the child if he/she is physically or mentally challenged, which we rarely see happening in biological births. We have turned into the surrogacy capital of the world; women are
being exploited by husbands, middlemen, being treated as baby-churning, money-minting machines. It is all because of the unregulated practice of surrogacy.” She, however, hastens to add that some surrogates are “thorough professionals, who do not get swayed by any emotion for the baby they have carried”.
Meanwhile, IVF specialist Dr Anurag Bishnoi, who made national headlines after a septuagenarian couple became parents to a boy in May this year, has a different take altogether. “The Bill may curtail exploitation of women but in hindsight, it will lead to breakdown of marriages and promote second marriage even. Ours is a very conservative society. No close relative will come forward to be a surrogate, which is exactly the reason so many childless couples who opted for surrogacy, went the commercial route,” says the doctor who runs his infertility centre in Hisar and has sold dreams of motherhood to many a women in the region, age no bar. His repository of ‘successful’ IVF cases ranges from a 30- year-old woman to a 70-year-old senior citizen.
In a directive issued in 2012, the home ministry banned homosexual couples from accessing surrogacy, a rule which has also found its way in the Surrogacy Regulation (Bill) 2016. Swaraj, during her press conference on Wednesday, said homosexuality is “against our culture and ethos”, which “explains why gays cannot opt for surrogacy”. “We have already criminalised gay sex under Section 377, and banning them from having surrogate children is the right step. While we may sound prudish or orthodox, Indian society is governed by some deep-rooted social mores that cannot be changed in a snap. Homosexuality is a misfit in that setup. It may turn out to be difficult for the child as well when he grows up and finds out that his/her parents are gay. Besides, newspapers are full of reports where gays couples have abused children and even trafficked them in the garb of adoption and parenthood,” reasons Jagpal Singh, lawyer, Punjab and Haryana High Court, adding that like adoption laws, it is equally important to have strict measures in place to also prevent exploitation of parents.
This view is shared by another legal expert RK Wadhwa. “It is a myth that only surrogates get exploited. Women too take advantage of a couple’s situation by demanding unreasonable amount of money as surrogate or share in the property. Allowing only altruistic surrogacy is a very positive step in protecting prospective parents. At the same time, the government must also rethink the adoption law, as it is a very tedious procedure. Some couples prefer to go in for surrogacy instead of completing all the formalities and paperwork involved in adoption as they find the former an easier option,” says Wadhwa, who practices in the Supreme Court.
Whether the new Bill will make the sun set on the booming surrogacy industry remains to be seen. It, however, has started causing ripples even before becoming a law
Whether the new Bill will make the sun set on this booming industry remains to be seen. It is causing ripples even before becoming a law. For instance, an Australian couple who was planning to fly down to India during Christmas holidays to finalise details for surrogate birth of their child, have had second thoughts. They may not be completely aware of the Bill’s features, but the mere mention that foreigners have been banned has dashed their hopes. “We had all plans and documents in place and were hoping to visit India in December so that the baby is planned during year-end. But with this new ban on foreigners and commercial surrogacy, we need to rethink. I know a few of my friends who went to India for their surrogate baby because it seemed to be a very welcoming and encouraging nation. We thought the government was promoting childless couples to enjoy parenthood through the various surrogacy centres that dot Indian states now. We understand that there must have been few bad cases that made the government sit up and take notice, but completely banning foreigners is unreasonable. This way, genuine cases like ours will suffer,” laments Sydney-based Elise Just.
The Bill, on the other hand, has triggered new-found fears in Indian couples with its close relative clause. Commercial surrogacy offered couples a comfortable anonymity which would certainly be lacking in the altruistic counterpart. In a society that still hushes up any conversations about sex and attaches stigma to an infertile woman, convincing someone from the family to be a surrogate — even broaching the topic — will require superhuman strength, one which may leave a couple drained and dejected.
The opposition to the Bill is just as strong as the voices endorsing it. Some experts feel that it has discrimination written all over it, blaming the government for its domineering and smothering the freedom to choose. “Who is the state to direct a married couple when to have a child (surrogate)? This is a draconian law. The government cannot decide on a couple’s behalf and dictate terms like this. Also, why the prejudice against NRIs, OCIs and live-in couples when they have been recognised by the law? What is the legality of barring them from accessing this practice? In its over-zealousness, the state is unable to visualise the undue social pressure to be a surrogate that relatives may have to face,” avers Mary Mitzy, lawyer, Delhi High Court. She sums up very wisely perhaps, “The bill at present should be taken with a pinch of salt, at best. Though it is a step in the right direction, it surely requires more in-depth analysis, debates and articulation, bearing the serious legal, social and political impact it could have before making it a law.”