Regulation of Surrogate Parenthood in India

By M.L.Dhar
PIB Features

New Delhi, May 13, 2011 (Washington Bangla Radio / PIB-India) The advances in human reproductive sciences have made it possible for couples and others to have biologically their own children who otherwise cannot for a number of reasons. This has given rise to the concept of surrogate mothers. Surrogacy is a method of assisted reproduction. More common form is IVF/Gestational surrogacy in which the surrogate child biologically belongs completely to the social parents. The other type is gestational surrogacy where the surrogate child is genetically related to the male parent and the surrogate mother.

India has emerged as a favourable destination for surrogacy and its Assisted Reproductive Technology (ART) industry has evolved into a 25-billion rupee business annually, with Law Commission describing it as “a gold pot”. The phenomenal rise in surrogacy in India has been due to it being cheap, socially accepted. Moreover, surrogacy has emerged as a preferred option because of complicated adoption procedures.

Foreigners including NRIs seeking surrogacy for various reasons, both medical and personal, have also contributed to the rise of the Indian surrogacy industry predominantly because of it being at least ten times cheaper than in their respective countries. No statistics exist on the number of foreign couples coming to India to have a child. But ART clinics say that their numbers have been appreciably growing.

In India surrogacy heralded with the delivery of its first surrogate baby on June 23rd, 1994, but it took eight more years to draw world attention to it when an Indian woman in 2004 delivered a surrogate child for her daughter in the U.K. Surrogacy as a medical process has matured over the years. India has become a booming centre of a fertility market, partly surreptitiously, and today there are an estimated 200,000 clinics across the country offering artificial insemination, IVF and surrogacy. They call it Assisted Reproductive Technology (ART).

There is at present no law governing surrogacy in India, eventually the activity including renting a womb (commercial surrogacy) is considered legitimate. In the absence of any law the Indian Council of Medical Research (ICMR) in 2005 issued guidelines for accreditation, supervision and regulation of ART clinics in India. But the need for legislation became pressing with ICMR guidelines being often violated and reportedly rampant exploitation of surrogate mothers and even cases of extortion.

At the instance of the Indian government an expert committee has drafted a legislation known as Assisted Reproductive Technology (Regulation) Bill, 2010 for legalizing surrogacy. The proposed legislation earlier floated in 2008 envisages legalizing commercial surrogacy as well. It defines a ‘couple’ as two persons living together and having a sexual relationship and as such, following Delhi High Court’s verdict on homosexuality, gives gays besides the singles the legal right to have surrogate babies. It also stipulates the age of surrogate mother to be within 21-35 years and limits her deliveries to five including her own children. The surrogate mother will have to enter into a legally enforceable surrogacy agreement as per the proposed legislation.

Foreign couples including NRIs seeking surrogacy in India will have under the proposed law to submit certificates that their country recognizes surrogacy as legal and also that the surrogate child after birth would get their country’s citizenship. The Law Commission of India in its 228th Report on “Need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy,” has by and large supported surrogacy in India, but is not favourable towards commercial surrogacy. The Commission said, “It seems that wombs in India are on rent, which translates into babies for foreigners and dollars for Indian surrogate mothers.”

But according to an infertility specialist in Mumbai the Commission favouring altruistic surrogacy only may not be the solution either. “It will be very difficult to get altruistic surrogates and relatives could end up being pressured to become surrogates,” says the specialist. This could be a reality in view of poverty, illiteracy and the lack of power that women have over their own lives in India.

But many legal experts are of the view that the draft Bill is a step in right direction as it will end the present confusion and help regulate the functioning of the IVF centers and ensure quality check and accountability of ART clinics. It is expected to protect the interests of both the surrogate mother and child and help the commissioning parents to realize their dream of having their own baby more or less hassle free.

There are worries too as to what impact it will have on the society in terms of commercialization. Poor illiterate Indian women with the lure of money could be forced into repeated surrogate pregnancies risking their lives. There are also ethical and moral issues as well as the human dignity involved besides questions about the rights of surrogate mother. As such the draft legislation on surrogacy needs to be debated threadbare in social, legal and political circles as well as by the civil society before it becomes a law.

Disclaimer: The views expressed by the author in this feature are entirely his own and do not necessarily reflect the views of PIB or WBRi.