Before you dismiss news reports of the Thai surrogate Pattaramon Chanbua giving birth to a baby for an Australian couple as something that does not happen in India, think again. Commercial surrogacy in India is a thriving transnational industry with a business model that defies regulatory mechanisms. More importantly, it is now famously referred to as part of India’s ‘outsourcing’ culture. But what does outsourcing a woman’s reproductive capabilities entail?
Research and reportage suggest that the practice depends on hiring women from a low socio-economic category with the promise of significant compensation for the purpose of carrying an artificially fertilised embryo. The potential surrogate mother’s gestational capabilities are tested and she is put through rigorous invasive medical processes that are harmful both physically and emotionally. And if the multiple embryo transfers and in vitro fertilisation (IVF) cycles lead to pregnancy, she is put under strict surveillance by IVF clinics and surrogacy agents controlling the surrogacy arrangement on behalf of Indian and foreign commissioning couples. Supervision of her diet and movement is best achieved in surrogacy hostels mushrooming in cities such as Mumbai and Ahmedabad. Yes, India is really a ‘hub’ for surrogacy with the practice thriving in most of our major cities.
Can such a practice really be free of exploitation? We can argue that surrogate mothers enter the arrangement out of choice, but does that mean they willingly submit themselves to the processes that involve lack of informed consent, heavy medication and constant invasion of privacy? The practice of surrogacy in India is heavily biased against the surrogate mother even though her contribution is the most important. In an inequitable arrangement, the surrogate is given scanty information about the medical process and the payments are extremely low. We need to ask what we need to do to change the terms of the surrogacy arrangement so that it benefits the surrogate, the couples and the child.
What is missing in the policy deliberations on surrogacy in India is the role that assisted reproductive technologies (ARTs) play in the arrangement. It is through the use of these technologies that the surrogacy arrangement is positioned as asexual and is made available commercially at a scale that is now being identified as an industry. Within the legal discourse on surrogacy, the role of ARTs is discussed without major question marks regarding their use. As of now, the Indian Council of Medical Research’s (ICMR) art guidelines regulate the technology and its practitioners to some extent while policing the surrogate entirely. The Sama Resource Group for Women and Health, an NGO, maintains that ARTs form a major part of the process of commercial surrogacy and need to be engaged with in greater detail.
Even as 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.
The research findings of Sama point towards surrogates being subjected to multiple ivf cycles, multiple births and the painful after-effects of almost mandatory c-sections. The motivations are almost always linked to monetary benefits — the paying off of a loan or saving up for her own children. In the light of our experiences and field-level interactions with the surrogates and the providers of these arrangements, as members of a women and health group, we would like to convey our concerns and suggestions with regard to the draft Bill. There are six core issues that need immediate attention.
Prohibition of genetic surrogacy
The draft Bill makes genetic surrogacy — an arrangement that involves the woman bearing a child using her egg (oocyte) and the commissioning man’s or donor’s sperm — illegal. The prohibition of genetic surrogacy is part of the process of creating complete biological ownership in the commissioning parent, thereby deliberately separating the surrogate mother from the child she is carrying. To create a sense of lack of genetic-biological connection, the compulsory use of ivf is advocated in surrogacy. But, ivf is medically a more invasive process than intra uterine insemination (iui), which involves the direct introduction of the sperm into the uterus. We advocate that both genetic and gestational surrogacy should be allowed.
Insurance for the surrogate
The draft Bill states that “the commissioning parent(s) shall ensure that the surrogate mother and the child she delivers are appropriately insured until the time the child(ren) is handed over to the commissioning parent(s)… till the surrogate is free of all health complications arising out of surrogacy”. However, the Bill does not elaborate on the nature and kind of insurance to be extended. There is also no mention of post-delivery and follow-up care of the surrogate mother. The Bill should explicitly state the kind of care and compensation to be extended to the surrogate, including reimbursement of all her expenses made during the pregnancy, such as travel to the doctors, medical check-ups and so on, besides the provision of free legal aid in case any conflicts arise during the surrogacy arrangement. These aspects will be essential in maintaining greater transparency, accountability and the children’s well-being. The Bill needs to specify such details for better implementation of its clauses.
Breach of Contract
The Bill does not deliberate on the course of action to be taken in case of breach of contract. For example, if the parents of the child do not pay the entire contractual amount to the surrogate, will the surrogate get to keep the child? It is suggested that even in cases of breach of contract, the custody of the child should be given to the parents, but a complaint may be filed with the commission (if it is set up under the Act) or with the appropriate civil or criminal court for the breach. Additional provisions should include prosecution of nri or foreign couples who do not fulfil their obligations in the contract, including giving powers to the police to act upon a complaint filed by the surrogate mother by preventing the parents from leaving the country.
Administration and monitoring of the contract between the surrogate and commissioning parent(s)
The draft Bill is silent on issues of the administration of the contract between the surrogate and the couple. That leaves several questions unanswered. For example, who prepares the contract and monitors that it is not breached? How would the money transaction actually take place? In cases where the surrogate is directly hired by the couple, how would the art bank come into the picture and what would be the significance of the surrogate’s contract with the art bank? Since the Bill allows known persons, friends and relatives to act as surrogates, it should also clearly list the mechanisms for the proper administration and monitoring of the contract drawn between the surrogate and the commissioning parent(s) in such cases.
Inherent contradiction within the Bill
There is an inherent contradiction regarding the source of payment to the surrogate. While Clause 52(6) states that “an art bank may advertise for gamete donors and surrogates, who may be compensated financially by the bank”, Clause 60(3) states that “the surrogate mother may also receive monetary compensation from the couple or individual, as the case may be, for agreeing to act as such surrogate”. The draft Bill, thus, does not incorporate a much-needed elaboration on the money transactions between the surrogate, the commissioning couple and the art banks. Further, considering that the surrogate in most cases is from a poor socio-economic background, her capacity to chalk out the financial details by herself is questionable.
Status of the child
The draft Bill has a provision of including only the names of the commissioning/genetic parents in the birth certificate of the children. The Bill should, however, also consider granting parental status to the surrogate mother. When a woman gives birth to a child, the birth must be officially documented and she must be acknowledged as the natural parent of the child born to her. This can be followed by a transfer of parenthood to the intended parents, either through adoption or another system devised specifically for the arrangement.
These are some of the core issues in the draft Bill that need immediate attention and deliberation. Having said that, we believe that no law should be passed without engaging in entirety with the current clauses. For this, there is an immediate need to make all policy deliberations open for public debate and discussion.
The writers work with Sama Resource Group for Women and Health, a New Delhi-based NGO