Unregulated surrogacy: Law yet to deliver

Vandana Shukla

India is among just a handful of countries —including Georgia, Russia, Thailand and Ukraine — and a few US states where women can be paid to carry another couple's genetic child through a process of in-vitro fertilisation (IVF) and embryo transfer.

TWO weeks ago an eight-month pregnant surrogate mother died in a Mohali hospital. The death prompted many denials. Efforts were made to establish that the deceased was not carrying a surrogate baby. But in the hospital records, the woman was registered as Pinky, the ghost name given to her was in fact the name of the woman, who, along with her husband allegedly commissioned altruistic surrogacy. Pinky is dead on records, but, the ghost Pinky who died with her eight-month-old foetus left behind a web of unanswered questions. Because though surrogacy is not illegal in India, it continues to operate as an unregulated industry.  

Ethical considerations

Despite using state-of-the-art technology and global network, ethical health considerations in the operation of IVF surrogacy are ignored: such as the harvesting of multiple oocytes for egg extraction, the implantation of multiple embryos, and the practice of embryo donation or sharing, all of which require women to undergo hormonal interventions. The woman who died under the name of Pinky, was reported to be sick for sometime. What led to her sudden death remains inconclusive. 

Cases like these are often hushed up. Even if investigations are carried, one does not know if lapses on the part of the medical practitioners would lead to prosecutions under the existing laws. Ironically, it is this very legal vacuum that allows the practice to grow.

In an extensively researched study on surrogacy, Sourcing Surrogates: Actors, Agencies and Networks, the writers V Deepa, Mohan Rao, Rama Baru, Romila Bisht, N Sarojini and Fairly Murray tracked the ways in which couples from India and across the world approach surrogacy services in India. The researchers looked at the whole range: From family-owned nursing homes that work as IVF centres with the aid of religious contacts of the gurdwaras in Chandigarh, to the highly sophisticated third-party agencies (TPA) of Mumbai that provide hostels for the surrogate mothers to live, away from the scrutiny of relatives and provide high levels of customer service. The  rural network of NGOs work as recruiters for potential surrogate mothers in the NCR area, the “social workers” help these women open a bank account etc. The study shows, the ART industry has created another parallel industry for the poor —the sale or hire of one's own body— which is touted as a form of social development. 

Public and legal debate

The public and legal debate, therefore, on the issue has been centred around the burgeoning billion-dollar industry generated by the transnational commercial gestational surrogacy (TCGS). Thus, in the contexts it is being configured, the regulation has acquired a completely different meaning.        

The Indian Council of Medical Research's (ICMR) Regulation of Assisted Reproductive Technologies Draft Bill, has been a work-in-progress since 2005. Its appearance in three subsequent drafts — 2008, 2010 and 2013 — has not led to any significant change in its primary perspective through these redrafts. Between June 2008 and May 2010 — the peak period when surrogacy was discussed extensively— there were a few stray mentions on certain clauses that dealt with the eligibility criteria for becoming a surrogate, and the suggested use of the technology in relation to the surrogate. This, compared to the extensive debate on the transnational nature of the commercial surrogacy arrangement remained negligible. 

The need for legislation on the issue was first felt in 2008, following the bizarre case of baby Manji, a Japanese baby girl born through a commercial surrogacy arrangement in Gujarat between a Japanese national, an Indian surrogate and a Gujarati IVF clinic. The ambiguous status of surrogacy in Japan, as in India, complicated the return of the baby, back to her home country. Towards the end of 2009, another case of stateless children came to light and the work on the draft bill began in all seriousness. The Balaz twins case involved two male infants fathered by a German man and Indian surrogate mother. They too were caught in a major row when India refused to furnish the children with Indian passports for their passage to Germany. Surrogacy is subject to prosecution in Germany, hence the country refused to accept the children. In both cases the Supreme Court had to intervene on humanitarian grounds, in the absence of clarity on the law.   

Since ICMR was the body charged with drafting appropriate legislation, the minister for women and child development, feminists and women's rights activists, across the spectrum, tried to reason for a more equitable form of legislation that would look at the rights of the surrogate and her health vis-à-vis the technology. A draft acceptable to all concerned stakeholders continues to elude. 

Till the enactment of a law on the ART Bill, 2013, the guidelines issued by the MHA in July 2012 prevail that surrogacy is restricted to infertile Indian married couples, apart from the OCIs, PIOs and NRI married couples. Foreigners, married for at least two years would be required to take a medical visa for surrogacy in India.  

It is a turnaround but  leaves many areas that women's organisations have been  demanding to be addressed out of the purview of law.   

The lawyers rue that the bill is being framed and drafted by the medical community that gives them unprecedented powers. Others, like Prof Mohan Rao, of JNU, accuse that the bill aimed at regulating  this booming market is drafted at the behest of the very industry it seeks to regulate. He demands complete ban on surrogacy, other than altruistic surrogacy. 

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