The Supreme Court legalized commercial surrogacy in 2008 in the case of baby Manji Yamada, daughter of Ikufumi Yamada and Yuki Yamada (the couple got divorced shortly before the child was born) in an agreement with Preeti Patel, the surrogate mother observing 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. Surely, the proposed law will usher in a new rent-a-womb law as India is set to be the only one to legalise commercial surrogacy.
COMMERCIAL surrogacy in India, dubbed as the “surrogacy capital of the world”, is projected to become a whopping US$2.3 billion industry by 2012, according to the Confederation of Indian Industry. Surrogacy related fertility tourism has long been fraught with ethical and human rights concerns in the country.
The Union Cabinet therefore is in the process of examining a Draft Assisted Reproductive Technology ART (Regulation) Bill, 2010. But, what prompts India to take a lead in adopting a legislation which is not fostered in many developed countries? Is India promoting Reproductive Tourism? Or is this bill a way to surpass the stringent adoption laws of India?
Surrogacy is basically of two types. One is altruistic where the surrogate mother is not compensated by way of money in return of her efforts and the other one is commercial where the motive to deliver an infant is earning money. Commercial Surrogacy is a debated issue as it has many moral and legal complications and is illegal in many other countries.
The reasons behind surrogacy boom in India can be first, is the ease of procedure. After the legalization of commercial surrogacy the whole issue has become a lot less hassle free, atleast legally. Also, the draft bill recognizes surrogacy agreements under the Indian Contract Act, 1872 and also provides for single parents who wish to have kids. Since a single male parent cannot adopt a child in India, surrogacy seems to be a good option to such single parents. Second, is the economic practicality. According to the 228th report of the Law Commission of India, “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY “ the usual fee for surrogacy in India is $25,000 to $30,000 which is almost one third to what it would cost in USA. Third, is the poverty and desperation for money that leads an Indian woman to act as surrogates.
The Indian Council for Medical Research has set a number of guidelines in 2005 about the supervision and regulation of ART clinics in India. The guidelines require the surrogate mother to sign a contract with the childless couple, however, there are no stipulations as to what will happen if the contract is violated. Also, experts point out that these guidelines are not legally binding as they are not yet ratified by the parliament. The law commission in its report has observed that the surrogacy arrangement should provide for a monetary support to the surrogate child in case of subsequent non willingness of the parents to take delivery of the child or in case of divorce of the parents.
The laws relating in other countries differ to what is being presented in India. In UK, no contract or agreement relating to surrogacy is legally binding. All expenses must be justified to the courts, which can intervene and ask for proof if the expenses incurred by the genetic parents are too high. In most US states, commercial surrogacy is either illegal or unenforceable. In Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. The surrogate mother is deemed to be the legal mother of the child. In Canada and New Zealand, commercial surrogacy has been illegal, but altruistic surrogacy is allowed. In France, Germany and Italy, surrogacy whether commercial or not, is unlawful. Renting a uterus for money is illegal in South Africa.
The proposed ART legislation can be summarized as:
- The Draft Bill gives gays, singles the legal right to have surrogate babies. It defines a ‘couple’ as two persons living together and having a sexual relationship. After the Delhi High Court verdict on homosexuality, even two gay men can claim to be a couple.
- A woman in the age-group of 21-35 can become a surrogate mother. She will be allowed five live births, including her own children. She will not be allowed to undergo embryo transfer more than three times in her life to the same couple. If implemented properly this provision will check the malpractice which compromise with the health of both mother and the child.
- In case of a single man or woman, the baby will be his/her legitimate child. If the surrogate mother is married, consent of her spouse is mandatory. The commissioning parents will have to accept the child’s custody irrespective of any congenital abnormality.
- A child born to an unmarried couple using a surrogate mother and with the consent of both parties shall be the legitimate child of both of them.
- During the gestation period, the couple will bear the surrogate’s expenses and give monetary help to her. The couple may enter into an agreement with the surrogate. Clinics will have to keep surrogates identity strictly confidential.
- Foreign couples must submit two certificates — one on their country’s surrogacy policy and the other stating that the child born to the surrogate mother will get their country’s citizenship. This provision is formulated keeping in mind a recent case of two twins born to a German couple in January 2008 to a surrogate mother in India who were rendered stateless as they did not get the citizenship of either India or Germany. After a two year long legal battle, the Supreme Court got them exit permits in May 2010.
- Foreign couples have to nominate a local guardian who will take care of the surrogate during gestation.
- ART banks, accredited by the government, will maintain a database of prospective surrogates as well as storing semen and eggs and details of the donor. Any ART bank or clinic cannot send Indian citizens abroad for surrogacy.
- State boards will give accreditation to ART banks — private and government. The board will have a registration authority which, in turn, will maintain a list of all In-vitro Fertilisation (IVF) centres and monitor their functioning.
- The draft bill also entails provision for live in couples who can go for IVF only if the woman cannot biologically bear a child or if it is too risky for her. No ART clinic is allowed to carry a surrogacy for patients for whom it may normally be possible to conceive a baby. This provision also rules out the fear of use of commercial surrogacy by woman who opt for it due to their busy career life.
- The Law Commission of India (2009) described ART industry as a “Rs 25,000-crore pot of gold”. It recommended only altruistic surrogacy arrangements and not commercial ones. The report in its conclusion largely supports surrogacy but its commercialization is something that has been an issue in the mind of law commission. But the Draft Bill legalizes commercial surrogacy as well.
The Draft Bill contains several landmark proposals to streamline surrogacy practices in the country since there were no rules earlier regarding the rights of the surrogate, minimum age, details about the contracts, informed consent and adoption requirements. In these times of globalization and market driven economies, there is a considerable demand for outsourced babies from India. The Bill is appropriate considering the exponential growth that commercial surrogacy is going to witness in India in the coming years. Whatever the intentions of passing the bill, many experts related to the field feel that the consequence would be creation of a market for the sale and purchase of babies or as the Court of Appeal in England put it in 1985 it as “ a baby farming operation of a wholly distasteful and lamentable kind.”
Surrogacy still stands as a pillar of hope for many infertile couples with the desire for a child. However, other options like continuing treatment or adoption should also be put forward to the patient.
228th Report, Law Commission of India, Aug 2009; http://www.lawcommissionofindia.nic.in
Draft on Assisted Reproductive Technologies (Regulation) Bill, 2010; http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf
Student, National Law Institute University, Bhopal
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]