The primordial urge to have a biological child of one's own flesh, blood and DNA — aided by technology, money and the Indian entrepreneurial spirit — has generated the “reproductive tourism industry”, which in medical parlance is known as Assisted Reproductive Technology (ART).
In the U.K., no contract or surrogacy agreement is legally binding. In most States in the U.S., compensated surrogacy arrangements are either illegal or unenforceable. In some States in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy, whether commercial or not, is unlawful. In Israel, the law only accepts the surrogate mother as the real mother and commercial surrogacy is illegal. What then prompts India to enact a proposed law to make surrogacy agreements legally enforceable to protect the genetic parents, the surrogate mother and the child?
India's surrogacy boom began in January 2004 with a grandmother delivering her daughter's twins. The success flashed over the world literally spawned a virtual cottage industry in Gujarat. Today, while Iceland has the first openly gay woman politician as its Prime Minister, India boasts of being the first country intending to legalise commercial surrogacy to legitimise the rampant intra and inter-country surrogacy.
Would-be parents from the Indian Diaspora in the U.S., the U.K. and Canada and foreigners from Malaysia, the UAE, Afghanistan, Indonesia, Uzbekistan and Pakistan, besides Nepal are descending on sperm banks and In-Vitro Fertilisation (IVF) centres in India looking for South Asian genetic traits of perfect sperm donors. Equally, renting wombs is another easy and cheap option in India. The relatively low cost of medical services, the easy availability of surrogate wombs, the abundant choices of donors with similar racial attributes and the lack of any law to regulate these practices are attracting both foreigners and Non-Resident Indians (NRIs) to sperm banks and surrogate mothers in India.
India, surreptitiously, has become a booming centre of a fertility market with its “reproductive tourism” industry reportedly estimated at Rs.25,000 crores today. Clinically called ART, it has been in vogue in India since 1978 and today an estimated 200, 000 clinics across the country offer artificial insemination, IVF and surrogacy.
So much so, the Supreme Court in 2008 in the Baby Manji Yamada's case observed that “commercial surrogacy” reaching “industry proportions is sometimes referred to by the emotionally charged and potentially offensive terms wombs-for-rent, outsourced pregnancies or baby farms.” It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, as a retort, no law permits surrogacy either. However, the changing face of law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy.
In the absence of any law to govern surrogacy, the Indian Council of Medical Research (ICMR) issued guidelines in 2005 to check malpractices in ART. These national guidelines for Accreditation, Supervision and Regulation of the ART Clinics in India, 2005 are non-statutory, have no legal sanctity and are not binding. Silent on major issues, they lack teeth and are often violated. Exploitation, extortion, and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity. Surrogacy in the U.K., the U.S. and Australia costs more than $ 50,000 whereas advertisements on websites in India give varying costs in the range of $ 10,000 and offer egg donors and surrogate mothers. It is a free trading market, flourishing and thriving in the business of babies.
In a phenomenal repeat exercise to legalise commercial surrogacy, The ART (Regulation) Bill & Rules 2010 — a draft bill prepared by a 12-member committee including experts from the ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare — was posted online recently for feedback. Originally floated in 2008, this Bill is stated to be an Act to provide for a national framework or the Regulation and Supervision of Assisted Reproductive Technology and matter connected therewith or incidental thereto as a unique proposed law to be put before Parliament. Abetting surrogacy, it legalises commercial surrogacy for single persons and married or unmarried couples, stating that the surrogate mother shall enter into a legally enforceable surrogacy agreement. She may receive monetary compensation and will relinquish all parental rights.
The 2010 Draft Bill states that foreigners or NRIs coming to India to rent a womb will have to submit documentation confirming that their country of residence recognises surrogacy as legal and that it will give citizenship to the child born through the surrogacy agreement from an Indian mother. This, perhaps, is in view of the two-year legal battle of the surrogate sons, Nikolas and Leonard, born to German couple Jan Balaz and Susan Lohlad, who, born to an Indian surrogate mother in January 2008, were rendered stateless with neither German nor Indian citizenship. The Supreme Court's intervention got them exit permits in May 2010.
Likewise, after being stranded in Mumbai, a gay Israeli couple were granted Israeli passports only after a DNA paternity established in May 2010 that gay Dan Goldberg was the father of Itai and Liron born to a surrogate mother in Mumbai. This was after the matter was debated in Knesset, the Israeli Parliament, and the Jerusalem District Court ruled in appeal that it was in the children's best interest to hold the DNA test to establish their paternity.
Before the law is put on the anvil, it needs a serious debate. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangements fall foul, will it amount to adultery? Is the new law a compromise in surpassing complicated Indian adoption procedures? Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting “reproductive tourism”? Does the law protect the surrogate mother? Should India take the lead in adopting a new law not fostered in most countries? These are only some questions which need to be answered before we drape the new law. Let us pore into our hearts and with introspection decide carefully. Are we looking at a bane or a boon? We should not wait for time to test it. We should decide now. The surrogacy bill needs to be discussed threadbare.
Despite the legal, moral and social complexities that shroud surrogacy, there is no stopping people from exploring the possibility of becoming a parent. Women who rent their womb for surrogate pregnancy are slowly shaking off their inhibition and fear of social ostracism to bring joy to childless couples. However, the Draft Bill has legal lacunae, lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict and falls in conflict with existing laws. These pitfalls may be the graveyard of this proposed new law.
(A practising lawyer, the writer specialises in Private International Law and has authored India, NRIs and the Law and Acting for Non-Resident Indian Clients .)
