The Regulation of Surrogacy in India – Questions and Concerns: SAMA
Guest post by SAMA, a resource group for women and health.
As the clamor dies down, of news reports celebrating the ‘miracle of science’ that made the arrival of Aamir Khan and Kiran Rao’s baby boy possible, it would serve to look more closely at commercial surrogacy in India. Estimated to be a multi-million dollar industry, Assisted Reproductive Technologies (ARTs, through which surrogacies are conducted) are a recent and fast-growing addition to India’s medical market and medical tourism sector. Their unregulated proliferation over the last few years has raised serious issues of safety, ethical practice, costs, and rights. While the proposed Draft Assisted Reproductive Technologies (Regulation) Bill & Rules-2010 is a long-awaited step towards regulation, several clauses, especially concerning commercial surrogacy, leave much to be desired.
The 2010 Draft stipulates that payment to the surrogate is to be made in five installments, with the majority, i.e. 75 %, to be made as the fifth and final installment, following the delivery of the child. In the 2008 draft, payment was divided into three installments, with 75% of the payment to be made in the first installment itself. This not only shows a clear priority accorded to the intended parents, but also betrays that the worth of the surrogate’s labour, pregnancy, related emotional and physical risks etc are considered reducible to and meaningless without a tangible reproductive ‘output’, the baby. The revision, therefore, is highly imbalanced, exploitative and unfavourable to the surrogate.
According to the Bill, only gestational surrogacy, i.e. through In Vitro Fertilization (IVF) and Embryo Transfer (ET), will be permitted, and genetic surrogacy, i.e. through Intra Uterine Insemination (IUI) will not. By ruling out genetic surrogacy, the bill seeks to foreclose the possibility of any contesting claims over the baby by the surrogate mother, thus preserving the contract. Yet, genetic surrogacy through IUI where possible remains a less commercial and less invasive option, and avoids the excessive use of IVF for obtaining donor eggs.
The present Draft has also increased the number of permitted successful live births for a surrogate from three (in the previous Draft) to five; this is inclusive of the surrogate’s own children. This provision inadequately addresses an aspect critical to the surrogate’s health: the number of permitted cycles she can undergo. Since the number of live births is not equivalent to the number of ART cycles, as the success rates of the procedure are low, to effectively ensure that the surrogate’s health is not exploited, the maximum number of ART cycles she can undergo must also be specified.
The draft also mentions that the maximum number of embryo transfers per couple that a surrogate can undergo is three. But the maximum number of couples this is applicable to is not circumscribed. Once again, given the low success rates of ARTs, all embryos transfers, like cycles, may not result in successful births. Thus, a surrogate may go through many cycles and embryo transfers for many couples before achieving the acceptable limit of five successful live births; this will adversely impact her health. Hence, this provision makes only a superficial attempt at regulation, with enough scope for misuse and exploitation.
Many serious health risks (procedural and drug-related, for both the woman and the child) need to be acknowledged and mentioned in the consent form. The consent form should also mention, where relevant, that long-term effects of drugs and procedures in ARTs are under-researched.
The Bill mentions that the commissioning parent(s) shall ensure that the surrogate mother and the child she delivers are ‘appropriately’ insured; while this is indeed necessary, more elaboration is required on the nature and extent of insurance that will be provided, particularly with regard to post-delivery follow-up and care, failing which the commissioning parent(s) and the overseeing clinic should be held legally responsible.
The draft Bill states that ARTs will be available to all single persons, married couples and unmarried couples. However, couple is defined as two persons ‘having a sexual relationship that is legal in India’. In addition, the bill defines both married and unmarried couple, as being in a marriage or relationship respectively that is legal in the country of which they are citizens. As such, it is not clear how these three definitions will be read together, and if ARTs will be available for gay couples, particularly Indian gay couples. This needs to be clarified and ascertained from a rights perspective, without any discrimination, since homosexuality has been decriminalized (but not legalized) in India.
The Bill mandates the appointment of a local guardian in case of surrogacy arrangements where the intended couple is staying outside India. This local guardian will be legally obliged to take delivery of the child born of the surrogacy arrangement if the intended couple does not do so. It appears that the local guardian may hand over such a child to an adoption agency, or bring him/her up. This is a significant responsibility, and as such the role of the local guardian needs to be clearly demarcated and overseen to prevent abuse.
In lieu of the recent and controversial cases (Baby Manji, Dan Goldberg, etc) of international surrogacy that have resulted in legal battles for citizenship status for the child/ren, the Bill has made provisions to address this issue. Now, the draft ART Bill 2010 mandates that any foreign couple accessing surrogacy in India must produce a certificate from their country declaring that it permits surrogacy, and will recognize the child/ren born out of surrogacy as its legal citizen/s. This is a welcome move. Nonetheless, many issues remain to be addressed; for instance, stem cell research that uses ‘spare’ IVF embryos raises ethical concerns such as, obtaining informed consent from users. It can be concluded that engagement with policy to regulate the ART industry has been a case of some steps forward and some steps back; yet, the need to engage remains.
For a full critique of the Bill please write to email@example.com
Earlier post on surrogacy on kafila