India’s Unregulated Surrogacy Under Scrutiny

By Devadatt Kamat and Lavanya Regunathan Fischer

Surrogacy in India Continues

Surrogacy in India continues to remain a very sensitive topic. The laws meant to regulate surrogacy are still in nascent stages, as they are stuck at various legislative levels. The only guidelines currently related to this field are those of the Indian Medical Association (IMA), which date back to 2006. Meanwhile, surrogacy is growing rapidly by the day, thanks to India emerging as a centre for medical tourism and being one of the few countries in the world where commercial surrogacy is widely available. Estimates for the value of this industry range from Rs 20 billion to 2.3 billion US dollars.

The legal situation in India is in sharp contrast to that existing in many other countries. In Germany and Canada surrogacy is outlawed or prohibited, in the United Kingdom it is highly regulated and very expensive. In Germany, over the last three years, there have been two controversial cases. The first, in 2008, involved twins born to a surrogate mother; the second arose barely a year ago. In both cases, German authorities refused to automatically give passports to children born of surrogate procedures. In both instances, the surrogacy procedure had been carried out in India. The main reason for the refusal of visas for these children was because surrogacy is not allowed in Germany. This is a homogenous and consistent line of reasoning and is very much in contradiction to the state of affairs in India where at the moment this sector is almost completely unregulated.

Indian Mythology to Surrogacy

There are references in Indian mythology to surrogacy, most notably in the legend surrounding Lord Krishna. But it is not commercial surrogacy – the type and scale of which is practiced in India. Today, the small Gujarat town of Anand, well known for it’s butter – another motif from the tales relating to Lord Krishna – has rapidly put itself on the global map as the most fertile ground for ‘surrogacy tourism’. All evidence suggests that the phenomenon has now spread from cities to smaller towns in India, with many of the centres calling themselves in vitro fertilisation (IVF) clinics to avoid public scrutiny.

Of course, there is not much emphasis given to the setting up of norms to govern this growing industry. The IMA guidelines are more like normative principles that are required to be followed and not statutory instruments that invite penalties. At present, in India the understanding between the surrogate mother and the commissioning parents is considered a contract, with a mention made of compensation to be paid to the mother. So although the guidelines recognise the existence of commercial surrogacy, it is relegated to the realm of an ordinary business contract. In other words, jurisprudence developed for commerce along with medical guidelines are the only form of regulation of a business that is referred to – and one can only assume without irony – ‘as wombs for rent’.

The Law Commission’s Report on Surrogacy

The Law Commission of India has brought out a report on surrogacy and the urgent need for regulation entitled, ‘Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy’. Unfortunately, this report, too, is now over three years old and the draft legislation on the issue, termed the ‘The Assisted Reproductive Technologies (Regulation) Bill 2010’, is still nowhere in sight as a legally enforceable statute.

The draft Bill itself is not without contentious issues since it is drafted from the perspective of the commissioning parents. The methods of payment to the surrogate and the other arrangements it lays down seem to suggest quite clearly that the surrogate figures low in the list of priorities in terms of care and protection. This is disturbing considering that surrogacy raises several ethical considerations including the fact that it leaves poor women at the mercy of a capricious system. These women often have no other recourse other than commercial surrogacy arrangements to buy themselves and their families out of debilitating circumstances. SAMA, a resource group working in the area of women and health, has raised concerns regarding the current situation as well as serious problems with the Bill. The number of pregnancies, the types of procedures and the care of the surrogate are all matters that have been inadequately addressed, both by the medical system as it exists today and the Bill.

Issue of Race and Ethics

There is also the issue of race and the ethics to be considered. The implications of the use of a ‘cheaper’ womb for children to be born from eggs and sperm donated by persons, usually of Caucasian descent requires to be considered. The Law Commission Report very succinctly puts down the issue facing India today when it says that the “non-intervention of law in this knotty issue will not be proper at a time when law is to act as ardent defender of human liberty and an instrument of distribution of positive entitlements. At the same time, prohibition on vague moral grounds without a proper assessment of social ends and purposes which surrogacy can serve would be irrational. Active legislative intervention is required to facilitate correct uses of the new technology i.e., ART, and relinquish the cocooned approach to legalisation of surrogacy adopted hitherto. The need of the hour is to adopt a pragmatic approach by legalising altruistic surrogacy arrangements and prohibit commercial ones.”

In addition, it is pertinent to note that there is hardly the required encouragement to look at adoption as a viable alternative to surrogacy to parents willing to consider this as an option to add to their family. Till recently adoption procedures in India were cumbersome and based purely on religious affiliation. With the coming into being of the CARA, or the Central Resource Adoption Agency, though this position has eased somewhat and adoption can now be a secular process. Nevertheless, the process suffers from delays and does not always provide the confidence to couples that it might be a viable method to add to the family.

Baby Manji Yamada v/s Union of India

The Supreme Court of India, in the 2008 case of Baby Manji Yamada v/s Union of India discussed surrogacy and noted that commercial surrogacy is reaching industrial proportions because of the ready availability of poor surrogates. It mentioned the 2005 Commissions For Protection of Child Rights Act but stopped short of demanding that the government take immediate action to regulate the whole surrogacy industry, and not just address the issue of the rights of the child once it is born.

But while civil society groups, the media, the courts and the Law Commission have periodically focused on the various negative aspects of the ART industry, the apathy of the country’s own legislators makes one wonder what is required to spur them to address the serious ethical and moral dimensions of this unregulated enterprise.

No Need to Ban Surrogate Procedures

There is no need to ban outright all surrogate procedures. India’s history of tolerance and the primacy of the family mean procedures like this can exist in harmony with options like natural childbirth or adoption. But the rampant commercialisation and lack of regulation that marks the use of ART in India create a shameful legacy for a procedure meant to bring joy to a family.

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