Surrogacy regulation may well be one of Hilbert's unsolvable problems. Only this is not mathematics and there are already many versions of the ‘solution' in existence. It has been a decade since the Indian Council of Medical Research (ICMR) and the Ministry of Health and Family Welfare have been trying to regulate the ‘fertility industry' that is proliferating unchecked all over the country, and yet we do not have comprehensive legislation in our hands. So far, there have been a set of draft guidelines (2002), the finalised guidelines (2005), the draft Bill 2008, the draft Bill 2010 and a Law Commission report (2009) — all with a mix of contradicting, progressive, regressive, rights protecting and profit-protecting clauses. The draft Assisted Reproductive Technologies (Regulation) Bill and Rules 2010, the latest version, has not been made public yet, and only glimpses of some of its clauses can be caught through recent news reports.
The draft Bill 2008 was widely criticised by health and rights experts and civil society organisations mainly on the ground that it promoted and facilitated profit making by private doctors and compromised on the health and rights of the surrogates and the children born. For instance, it allowed a woman to act as a surrogate for three different couples and she could undergo an embryo transfer three times for each couple. This means she could undergo nine cycles of In Vitro Fertilization (IVF), which could play havoc with her health. It seemed that the Bill looked at surrogates as reproductive vehicles, turning surrogacy into a method that could be relied on for earning a livelihood. The Law Commission report, however, took a U-turn: it recommended banning commercial surrogacy, while allowing altruistic surrogacy.
The clause clearly demonstrating the pro-profit orientation of the 2008 Bill was the provision facilitating easy access to foreign couples to hire Indian surrogates, including appointing a local guardian for the surrogate. Had this Bill been passed, this clause would have made India the only country to legally offer commercial surrogacy. Thankfully, the new version of the Bill has made an amendment to this clause. It has recently been reported that it will be mandatory for all foreign couples coming to India for surrogacy to submit documents from their home country certifying that they permit surrogacy in their country and that the child born will be granted citizenship. This is a welcome change and will, in some way at least, ensure that children born through surrogacy are not caught in legal conflicts and declared ‘stateless.'
However, the clause on appointing a legal guardian has unfortunately been carried forward in the 2010 Bill as well, which is of particular concern. For, there can be no rationale behind creating a legal mechanism to monitor and supervise an adult woman's life only because she is gestating someone's child. Moreover, with the prevailing ambiguity over who the local guardian will be, what his/her duties and responsibilities will be and the extent to which he/she can monitor the surrogate's life, which have not been detailed, the surrogate's personal life and privacy stand at the risk of being jeopardised.
Another reported change in the 2010 Bill is that unless gay and lesbian relationships are legalised in India, gay couples from other countries too would not be allowed to access these technologies. Recently, there has been a rise in the number of gay couples from various parts of the world to have a child through surrogacy in the Indian clinics. While the Delhi High Court in July 2009 did decriminalise gay sex, gay relationships are yet to be legalised. There were a host of other objectionable clauses in the 2008 Bill, like allotting the task of sourcing gametes and surrogates to semen banks, allowing women to donate eggs six times with a gap of three months each, the absence of the basic rights to the surrogate, etc. What the 2010 Bill has to say about these and the rest of the clauses is yet to be seen, and cannot be known till it is made public. Whether the 2010 Bill is trying to find a middle path between the 2008 Bill, the Law Commission report and the comments and feedback from civil society is hard to say. In any case, while the policymakers keep drafting, changing, redrafting and reversing rules on paper, the surrogacy market continues to proliferate.
(The writer works with Sama Resource Group for Women and Health, a Delhi-based women's organisation. email: aasthasharma14 @gmail.com)