The cobweb of surrogacy

A child is a boon for a couple and ushers happiness in their life. But unfortunately if they are unable to conceive naturally due to some medical reasons, then surrogacy is one option they can avail to have this “boon” in their life. Beyond this idyllic notion lies a vortex of factors which encircle this subject including the issue of rights of the surrogate mothers and reported cases of their exploitation, when it comes to their treatment or the financial aspect of renting their wombs. Also the government’s recent decision to ban surrogacy for foreigners in India has triggered a global debate.

Currently, surrogacy is a multi-billion dollar booming industry in India. What adds to the existing problems is that we have no specific law for surrogacy in our country to curtail malpractices. As of now fertility clinics are following the guidelines issued by the Indian Council for Medical Research (ICMR). Recently the ICMR, under the health ministry has issued fresh guidelines which have banned surrogacy for foreign couples giving preference to Indians. Regarding a legislation on the issue, presently a draft surrogacy bill – The Assisted Reproductive Techniques (Regulation) Bill 2014 – is being prepared and needs to be passed by the Parliament to be made into a law.

After the ICMR guidelines came in, there are varied voices being raised on the issue, eliciting mixed reactions. The government is emphasising on several cases of exploitation of surrogate mothers and inconsistency in the money paid to them, as the amounts are vastly different for an Indian and foreigner. The immediate hit has been faced by the In Vitro Fertilisation (IVF) clinics mushrooming across the country. Losing out on foreign clientele is in fact a huge financial setback for them. While speaking to us, one of them insisted that the “government is discriminating by banning foreigners in India for surrogacy.”

Explaining the issue, Dr Soumya Swaminathan, Director General of ICMR told Sunday Post, “There is a lot of variability in these Assisted Reproductive Technology (ART) clinics. Many of them have just come up as fly-by-night operators and have set up these clinics with poorly qualified people. They are literally shepherding these women (surrogate mothers) into hostels and performing the procedure. We don't even know how much are these women being paid exactly. In fact there are a number of women who are being exploited, also the rights and health of the child and the mother are not being protected.”

Regarding the ban on foreign nationals including Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens Of India (OCIs), she cited the cases of exploitation of 

surrogates. “That is why the government has taken a view not to permit foreigners because a lot of such instances were brought to our notice, where either the baby was abandoned because it was born with some medical ailment or the visa was not granted to the baby. Also there are instances where the foreigners change their mind or get divorced and the baby and the mother is really left high and dry.” 

Regarding what can be done to ensure the rights of a surrogate mother is protected, Dr Swaminathan said, “There is the Assisted Reproductive Techniques (Regulation) Bill, which has to be yet discussed and passed in Parliament . We have to wait for that Bill to come and that should happen within the next year I hope. After this we will have a law to regulate surrogacy in India. We will have guidelines and rules in place and also punishment can be accordingly given if you break the law. Right now there is no regulation at all.”

Asked about people flouting the guidelines right now, she said, “As there is no law right now to take action against fertility clinics there are only guidelines, so action can only be taken against them if someone is violating the Medical Establishment Act. That too action can be taken only if cases are reported or complaints are registered.”

Meanwhile several medical practitioners in India are unhappy with the government’s decision to ban foreigners. 

Dr Nayna Patel, who runs Akanksha fertility clinic in Anand, Gujarat while speaking to us over the telephone said ,“I feel that it is quite discriminating to ban and the government should consider the cases on a humanitarian ground. If the government regulates surrogacy then it will be a great idea as the couples who are in need and all the surrogates who are in need of the monetary help will benefit from it. We are depriving so many people of their basic right to go in for a surrogate baby by adopting this adverse measure.” The present rate for a foreign couple for the procedure as cited by Dr Patel is $20,000 while for an Indian couple is twenty lakh rupees. 

Meanwhile in several parts of the country the rate offered to Indians goes up to 40 to 50 lakh rupees for the procedure. “It is incorrect to say that foreigners exploit Indian surrogates. Surrogate mothers are very well compensated and taken care of. The foreign couple also stay in touch with the surrogate mother and send postcards and letters to them. The whole idea to be rejecting them for this process is sad,” she added.

The government’s recent notice to ART clinics was initiated after a petition was filed against surrogacy in Supreme Court. The government told the Supreme Court that it is not in favour of supporting commercial surrogacy in order to protect the rights of surrogate mothers. In an affidavit, the government said “altruistic surrogacy to needy, infertile married Indian couples” will be allowed after thorough checks are done on the couples. On 26 October 2015, the Directorate General of Foreign Trade restricted the import of human embryos to research purposes, as per guidelines issued by the department of health research (DHR), under the health ministry.

Explaining the legality of the matter, senior advocate Sanjay Hegde said, “There is already a PIL against commercial surrogacy in the Supreme Court, which is still pending and the court is yet to give a judgment on it. In the absence of a law, surrogacy is a contract like most other things. The only question is whether it is a contract which can be violated under the Contract Act and whether such a contract is not opposed to public policy.”

“Currently surrogacy is like a contract between two people. There is no law which bans foreign couples but now there are ICMR guidelines which have been issued so if any medical professional assisting such actions can now be taken up for action before the Medical Council. Similar to most transactions the foreigner has a currency advantage as compared to an Indian in this case. Ultimately surrogate parenthood is necessarily a resort of the affluent. The surrogate mother and the child are also a part of the contract. The child is the subject matter of the contract, now if you fulfil the contract and take the child then all is fine. But if you don’t take the child then you don’t perform your contract then the complainant can go to court and get damages, but in such a case the child remains abandoned.  There is a need for a legal framework beyond the Contract Act, which needs to be constituted to address several cases whether the surrogate mother and child have been exploited,” said Hegde. “The ICMR guidelines which are operational so far as doctors are concerned and if doctors undertake any such activity flouting them, then they are subject to review by the Medical Council,” he added.

Emphasising on the need for “regulation” on the issue, Dr Ranjana Kumari, director, Centre for Social Research said, “We had raised the issue of exploitation of women who are renting their wombs and still there is no regulation or a legal framework in place. As a result they have been duped and exploited due to which the baby’s health suffers. Now they (the government) have gone to the other extreme of banning it.”

She added, “I don’t think this industry which was allowed to grow to this proportion which is now a multi-billion dollar industry in the Indian medical system, it is now very difficult to be banned or curtailed. Banning is not the answer regulation is the answer. We need to strictly monitor it to control it, by just banning will not resolve the issue.”

The problems of exploitation or sometimes dismal payment which surrogate mothers suffer has to be addressed. The key being the need to have a law in the country which monitors and regulates these fertility clinics and takes action if any case of malpractice is reported.