Commercial surrogacy in Australia is banned and many other places like New Zealand and most European countries and is subject to a wide spectrum of regulation in U.S. states were legalized in India in 2002.
The cost of the medical procedures, air tickets, and hotels for two trips to India (one for the fertilization and a second to collect the baby) comes to around US$ 35,000, roughly a third of the typical price in the United States.
India may have been a booming center of ‘reproductive tourism’ for several years, but it took the complicated case of Japanese baby Manji — born to an Indian surrogate mother — to bring into relief the fact that the law hasn’t managed to catch up with the burgeoning baby industry. But this is set to change now, with India set to be the only country in the world to legalize commercial surrogacy.
The proposed rent-a-womb law, if passed in the next parliamentary session, will clearly be one of the friendliest laws on surrogacy in the world.
The first-of-its-kind Bill to control and monitor cases of surrogacy in the country has been drafted by the Ministry of Health and Family Welfare, along with the Indian Council for Medical Research (ICMR) — the ICMR posted the draft Bill earlier this month to invite public comment over the following month.
What is unique about this proposed law is that unlike other countries, including the UK, USA, and France, surrogacy agreements between the two parties will be legally enforceable. In addition, say, experts, the new law protects everyone involved — genetic parents, surrogate mother and the child.
“So far we do not have a law and commercial factors dictate most aspects of surrogacy. Like in the case of Manji, foreign nationals come to India because surrogacy here is one-tenth of what they might have to pay in the US or UK. While a lot of debate still needs to be done about the monetary aspect, this draft does justice to all parties involved,” says Dr. Sunita Mittal, who heads the Gynaecology Department at AIIMS.
Here is a brief description of the provisions of the proposed law in India and the existing ones in other countries:
In 2005, the Indian Council of Medical Research (ICMR) issued guidelines to check the use of assisted reproductive technology (ART) but these are non-binding provisions and often practiced neither in letter nor spirit.
In fact, in the absence of a legal framework, cases of exploitation and extortion are rampant. The Assisted Reproductive Technology (Regulation) Bill and Rules, 2008, for the first time attempts to plug the loopholes that have brought infamy to such treatment.
A draft bill prepared by a 15-member committee including experts from ICMR, the ministry of health and specialists in the field, will be presented before the winter session of Parliament.
The 135-page document has been posted online to seek feedback. The provisions have raised the hackles of ART experts.
In the process of legalizing commercial surrogacy, the draft bill has done away with relatives as donors in the case of IVF. In other words, sisters, brothers or other members can no longer provide sperms or oocytes for the impregnation of a family member.
Neither can family members or relatives of the proposed parents act as surrogates unless they belong to the same generation?
Instead, a semen bank has been introduced to supply donor sperms and eggs and arrange for surrogate mothers. An elaborate contract between the bank and the parents-to-be will define the terms and conditions.
The entire process has been anonymized, Dr. Pushpa M. Bhargava, director, Center for Cellular and Molecular Biology, Hyderabad, the chief architect of the bill told OWSA.
He says: “Relationships in our society are structured in such a way that there is often a moral problem in cases where relatives are surrogates or donors. For instance, a mother-in-law may ask a clinic to use a sample from her other son to impregnate her daughter-in-law.
But later, if relations sour, the same mother-in-law may accuse her daughter in law of committing adultery.” If the donor is known, there is an element of unease, he adds. In the absence of regulations, clinics use any sample, even of their colleagues, he says. Hence, an independent semen bank will ensure transparency and anonymity.
“Earlier, the biological parents were known hence there was an assurance about the genetic pool or the family traits. Now, in addition to the trauma involved in the treatment, the biological parents will be anonymous and difficult to track down.”
Additionally, the provision that family member surrogates have to belong to the same generation will lead to problems for many. “What about cases where an aunt, aged 30 is perfect health and willing to be the surrogate for her 20-year-old niece. Why do you need to be of the same generation? You cannot generalize these provisions on the basis of a few cases,” she says. In 2004, there was a case in Patel’s clinic where a mother aged 43 had been the surrogate for her daughter.
The semen bank will now handle these matters. As per the new provisions, elaborate guidelines have been laid down for both surrogate mothers and gamete donors. The semen banks, which are independent of the clinics, will have to advertise for surrogate mothers and donors and lay down certain conditions.
For instance, the surrogate mother has to be between 21 and 45 years of age and free of disease. No woman, the draft adds, will be allowed to act as a surrogate more than three times and records of all surrogacy agreements will have to be maintained.
Besides, as per the contract with the parents-to-be, the surrogate will now be entitled to insurance cover and remuneration for her services. Professor Lakshmi Lingam of the Center for Women’s Studies, Tata Institute of Social Science fears this may turn surrogacy into a sort of recruitment.
“Women from the lower-middle income groups will come forward and it will eventually involve agents and middlemen,” she told OWSA. She further says the medico-business lobby is hurriedly pushing the bill and links it to medical tourism.
“Assisted reproduction is a lucrative business involving crores. There is a predominance of specialists from the private medical fraternity in the drafting committee of the bill,” she says.
But ART clinics, apart from All India Institute of Medical Sciences (AIIMS) and Postgraduate Institute of Medical Education and Research (PGI) are mainly in the private sector says, Bhargava.
“Obviously, the specialists will be from the private sector,” he adds. For him, the commercialization of surrogacy is not a problem.
“That was always the motive. Take the first case of surrogacy in India, it was a woman in Punjab whose husband was in the hospital in need of surgery without which he would die. She needed the money and hence responded to an advertisement in a women’s magazine.”
But he assures that the provisions clearly state that no middlemen will be involved. The banks will have to deal with surrogate mothers directly.
On the issue of the ART bill being catered for medical tourism, Bhargava says he’s proud that India has emerged as an important hub for medical tourists.
“Yes, I want patients from other countries to come to India for ART just like for other treatments. And I want them to be able to go to not just the private clinics but government institutions like AIIMS and PGI as well.
In fact, foreigners seeking infertility treatment in India will first have to register with their embassies and sign a notarized statement of terms and conditions as well as list the relatives to whom the child should be entrusted to (for instance, which set of grandparents) in case of death or divorce of the proposed parents.
The bill also includes opportunities for unmarried individuals or couples to have their own children through artificial insemination with donor sperm (AID).
The section titled ‘Determination of the Status of the Child’ in Chapter VII says: “A child born to an unmarried couple through the use of assisted reproductive technology, with the consent of both the parties, shall be the legitimate child of both parties.
In the case of a single woman the child will be the legitimate child of the woman, and in the case of a single man the child will be the legitimate child of the man.”
This provision opens up the possibilities for widows, widowers, and the lesbian and gay communities to have their own offspring. This appears to be a paradox since the Indian Penal Code still treats homosexuality as a crime.
The mounting paperwork brought on by the new regulation has been another criticism of IVF experts. They point out that in addition to the doctor and the semen bank a lawyer too will have to be involved in the process.
“Apart from the contracts mentioned, the clinics will henceforth have to maintain records of the parents-to-be and even the fingerprints of the parties and the baby for ten years. This is a very cumbersome process,” says Patel.
But Bhargava insists this is an essential part of the process. “Electronic records will do,” he adds. In fact, after a decade, the records will be transferred from the clinics to the central database of the ICMR and will remain confidential. A child wanting to trace his biological parents will be privy to all the information except the name and address of the donors.
The proposed bill also envisages a regulatory mechanism whereby the IVF/ART clinics will have a registration authority with state and central boards over it. Scrutiny and licensing of these facilities will be undertaken to ensure quality standards. Patel welcomes this aspect of the regulations.
This is a very specialized treatment and involves a lot of emotional trauma hence there is a need to ensure that the clinic is properly equipped to provide the best treatment to the patient.
But some women activists say the bill has overlooked serious issues – for instance, the bill does not state the minimum remuneration that a surrogate mother should receive.
“Will the Indian surrogate mother be treated at par with those in other countries,” asks Lingam. There is a need for further consultation, she adds.