A setback for surrogacy in India?

After a court ban and proposed changes to legislation, the lucrative industry could lose its best paying ‘customer’ — commissioning couples from other countries.

November 29, 2015 01:34 am | Updated 03:45 am IST

Representational image.

Representational image.

In India, the engine that drove the multi-billion surrogacy industry was globally falling birth rates, and over the past decade, India’s “liberal” laws further propelled the entirely unregulated sector to organise itself into a fast growing profitable venture.

Now, the rules are set to change.

On November 4, the Supreme Court imposed a ban on the customer in question — foreign nationals. Through the introduction of the proposed Assisted Reproductive Technology (ART) Bill, the Central Government now seeks to narrow surrogacy services to Indian couples or foreigners married to Indian citizens.

There is now unhappiness.

Bindu Shajan Perappadan

“The couple of the child I am carrying have been trying to have kids for 15 years,” says ‘Y’, a 24-year-old commercial surrogate and a biological mother to her two-year-old child. Her husband is a driver and they are in the business “because it also pays well.’’

“I want to go back to my village, buy land and settle down,” she says. “This money is the only way out. My husband will never be able to earn enough for us to return home. But if become a surrogate mother, we will have enough money,” she explains.

Another surrogate, ‘X’, said she did this for her child’s future. “What is wrong in this?” ‘X’ has a seven-year-old biological son who she hopes to send to a good school and away from the rigours of city life. “After this delivery and sending my child to hostel, I will work full-time. If my husband and I work, we will be able to ensure that my child becomes a doctor and escapes this life of struggle,” she explains. “After all, we have no pension or government security in our old age. Who knows if our children will take care of us? It’s only prudent to save for the future. Motherhood and the ability to have children is a gift that nature has given to lucky women... I don’t think there is anything wrong in ‘gifting’ and ‘sharing’ this divine power and engaging in something that is mutually beneficially to all the parties involved,” she adds.

The arguments are not new. A group of surrogate mothers has moved the Supreme Court seeking a withdrawal of the November 4 circular banning foreign commissioning parents.

Grey area Commercial surrogacy, largely an unregulated grey area, has been allowed in India since 2002. The Supreme Court (2008) called surrogacy a medical procedure legal in several countries including India. The surrogacy debate started with the Baby Manji Yamada case in which the commissioning parents divorced during the pregnancy and the commissioning mother refused to accept the baby. The court finally granted custody to the baby’s grandmother. In 2008, another case, on the citizenship of surrogate babies, led the Gujarat High Court to state that there is “extreme urgency to push through legislation” which addresses issues that arise out of surrogacy.

A draft ART Bill, pending in Parliament since 2010, is now expected to be taken up in the on-going winter session.

It is India’s first attempt at regulating the surrogacy industry which was earlier guided by the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005, and subsequently amended in 2008, 2010 and 2013.

It is being seen as a setback for commissioning parents. After being married for over a decade, Dr. R, a British passport holder and a gastroenterologist of Indian-origin came back to India to “complete his family”.

“Adoption wasn’t an option,” says Mrs. L as she hugs her newborn child. Now a mother after a year of the surrogacy process was initiated at a Delhi clinic, she is very clear about why she and her husband came to India. “The country offers the best in terms of medical advancement, it’s reliable, cheap and world class. Besides, surrogate mothers are available here in India which isn’t the case in most parts of the world.”

Almost all surrogate mothers and commissioning parents this correspondent spoke to agree that foreign surrogacy should not be stopped. The association of medical practitioners providing fertility treatments are concerned that the government, instead of effecting better regulation, has imposed a blanket ban on a section of customers. Dr. Shivani Sachdev Gour, secretary, Indian Society for Third Party Assisted Reproduction (Instar) said, “We feel the new restrictions are too binding. You have to understand that surrogacy needs a more humane approach and more individual case-by-case attention. We cannot have a single blanket rule to govern the ethical and legal nuances of surrogacy.”

But women’s rights organisations say that “poor” women should not be exploited in the name of noble work. Dr. Ranjana Kumari, director, Centre for Social Research said, “There are many issues besides sex selection and exploitation of the poor surrogate mothers. There are countries that do not allow surrogacy. What would the nationality of the child be when the intended parents are from that country? About 48 per cent couples opting for surrogacy are foreigners.”

Dr. Kumari notes that surrogates aren’t given their due. “Though the couple who wants to have a baby through a surrogate mother pays anything between Rs.2 lakh to Rs.5 lakh to agents, the woman who delivers the baby gets only Rs.75,000 to Rs.1 lakh,” she says.

Cheap medical facilities, advanced reproductive technological knowhow, coupled with poor socio-economic conditions and a lack of regulatory laws in India are what make India an attractive option.

In India, the business of providing “wombs on rent” is now valued at $500 million. The number of cases of surrogacy is believed to be increasing at a galloping rate,” says Dr.Kumari.

Indian Council of Medical Research (ICMR) data says that approximately 2,000 babies are born every year through commercial surrogacy. Confederation of Indian Industry (CII) figures claim that surrogacy is a $2.3 billion industry in India, because it is largely unregulated and cheap. Clinics function in tight cliques; unrelated centres like dental clinics sometimes assist fertility clinics, say experts.

ICMR says that professional surrogates need to “protected against exploitation”. A senior official said, “We hope to ensure accountability of the ART banks and ensure that the malpractices — private clinics advertise for surrogates and the money paid is arbitrary — is eliminated altogether. Also, [the] rights of the commissioning couples will be protected and the industry will be streamlined and brought under the preview of proper rules and regulations.”


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