Taking a cue from surrogate mothers in Delhi, four women who offer surrogacy services in Mumbai have decided to approach the Supreme Court to appeal against the ban on commercial surrogacy and foreign couples seeking surrogates in India.
Last month, surrogate mothers in Delhi had petitioned against the government’s stand on commercial surrogacy, saying it was ‘discriminatory’ and ‘motherhood should not be divided or discriminated against on the basis of caste, colour, creed, nationality or citizenship’.
Women in Mumbai’s Behrampada who offer their wombs on rent said the government has no right to decide on their behalf.
Talking about moving the apex court, one of them, requesting anonymity, said, “How can the government decide on whether I can bear a child for an Indian and not for a foreigner? It is my right and my choice and completely my decision to give my womb it out to whoever I want.”
The government stand
The government has said it will not support or encourage commercial surrogacy. It prohibits foreigners from becoming commissioning parents of children born in India.
In its affidavit filed in the Supreme Court on October 27 this year, the government stated that it will penalise more than 3,000 commercial clinics across the country if they offer surrogacy services to foreign couples
The government said a notification that allowed import of human embryos has been reversed, and that human embryos can no longer be imported into India except for research purposes.
It said the move is aimed at protecting the dignity of Indian womanhood, prevent trafficking in human beings and the sale of the surrogate child. Only needy infertile Indian couples would be allowed to opt for surrogacy of the ‘altruistic’ kind, which mostly involves a close blood relative.
The government crackdown on commercial surrogacy was spurred by a debate triggered by a German couple who came to Gujarat in 2008 seeking a surrogate mother and returned with twins.
The case raised questions about the citizenship of the children and also highlighted broader aspects of regulations surrounding surrogacy in India since 2002.
The debate reached its crescendo when the Union government cracked the whip and proposed a ban on commercial surrogacy on October 27, 2015.
To curb the exploitation of women and regulate the estimated $400-million industry in India, the government intends to bring a legislation called the Assisted Reproductive Technology (ART) Bill, 2014 which will decide the fate of around 20,000 women and their families across the country.
What the Bill says
To be tabled in Parliament soon, the ART Bill excludes single men and women, couples in live-in relationships, the Lesbian, Gay, Bisexuals and Transgender (LGBT) community.
It aims at proper regulation and supervision of ART clinics and banks in the country to prevent misuse of technology, including surrogacy, and for safe and ethical practice of these services.
It paves the way for setting up of national and state boards for ART and makes registration of ART clinics mandatory.
The Bill also defines the eligibility of a surrogate mother. Only a married woman between 23 and 35 years with her own child who is at least three years old, and has her husband’s consent, is allowed to become a surrogate mother.
The commissioning parents must bear all medical expenses, insurance and are legally bound to accept the custody of the child irrespective of any abnormality that the child may have.
Violators will face imprisonment of up to five years or a fine of Rs 10 lakh or both. The Bill also prescribes a minimum compensation for the surrogate mother in such cases..
Restrictions on commissioning parents
The Bill makes it mandatory for the couple to be married for a minimum of two years. They will also need to submit a certificate, duly attested by the appropriate government authority of that country, confirming that the woman is unable to conceive.
The eligible couple will have to produce a duly notarised agreement with the prospective Indian surrogate mother.
Next, they have to produce an undertaking that says they will take care of the child or children born through surrogacy.
Commissioning surrogacy in India will not be easy for foreigners married to an Indian because there are other conditions to be fulfilled by them.
Studies and surveys shows that presently, nearly 20 per cent of couples seeking surrogates in India are foreigners. According to a 2012 study by the Confederation of Indian Industry (CII), around 10,000 childless foreign couples visit India for an alernative solution and commission surrogacy.
A billion-dollar industry
As instances of infertility increases worldwide, surrogacy has become an estimated $2.3 billion industry.
A United Nations-backed study had pegged the size of the Indian industry at $400 million, but many in the field said it is much higher.
A surrogacy contract can fetch the surrogate mother around Rs 4 to Rs 8 lakh, depending on the number of babies she is carrying. In India, an egg donor can get Rs 25,000 every time she donates her eggs for surrogacy procedures.
The government said it will penalise clinics if they offer surrogacy services to foreign couples
