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COMMERCIAL SURROGACY – TO BAN OR TO REGULATE Ms HEMA SAHU Advocate, Supreme Court of India

  • Surrogacy is a type of agreement between a couple /a person & a woman to
    deliver a child. Surrogacy can be commercial or altruistic. It is commercial
    surrogacy if the surrogate mother demands /receives compensation along with the
    reimbursement of the medical & other related expenses during the course of
    pregnancy, and when the surrogacy is not commercial its altruistic. In the present
    era, reproduction itself can be outsourced by the new assisted reproductive
    technologies, thereby changing the traditional concept of parenthood across the
    humanity. Money is legally exchanged for babies and reproductive labor, here-by
    expanding the flourishing international business of transnational surrogacy.
    Originally surrogacy happened within families and friends. Known surrogates
    would give birth for infertile family members or friends. This was an altruistic
    deed as these surrogates were generally not paid for it. Over the last few decades
    however, there is a noticeable trend of the commercialization of surrogacy.
    Some say that this is an undesirable development as giving birth to a child should
    not be regarded the production of a commercial product. They feel that surrogacy
    is similar to baby selling and that a law comparable to the one prohibiting the sale
    of human organs should apply to the sale of childbearing.
    For others surrogacy arrangements are a win-win situation. On the one hand, the
    intended parents benefit from finally having what they have desired for so long. At
    the same time, surrogate mothers profit from the agreement through the
    opportunity to increase their economic solvency and are thus able to take better
    care of their families. Therefore the needs of two desperate women are both met
    in a surrogacy transaction.
    One need to acknowledge that infertility affects about 1 out of every 6 couples.
    Unfortunately some couples, due to certain physiological conditions, cannot give
    birth to their own offspring. This includes not just those unable to conceive after 12
    months of trying, but also those that cannot carry a pregnancy to term. Over the
    years the social attitudes towards medical interventions like IVF have changed.
    Advances in medical sciences and technology, particularly in assisted
    reproductive techniques, with techniques like donor insemination and embryo
    transfer methods have revolutionized the reproductive environment and have led to
    an increase in popularity of surrogacy. As a result infertile couples have become
    less reluctant to seek help, which is reflected in the percentage of infertile couples
    registered by the clinics. As well as women nowadays postpone childbearing
    because of career prospects and contraception. Consequently, women are older
  • once they start trying to conceive a baby. Older women are generally less fertile
    because of age-related biological factors. Due to several reasons, such as the
    changing sexual practices, the use of intrauterine devices, more and more women
    suffer from pelvic inflammatory disease, which is a leading cause of female
    infertility. For many infertile men and women, being unable to bear and raise
    children has severe emotional and psychological consequences. They often feel
    guilty, and experience a loss of self-worth and confidence. To many infertile
    people, their condition affects their most fundamental feelings about who they are
    and what their role in the family is? It influences one‘s personal identity and the
    extent of fulfillment. For that reason, infertility is regarded a major health
    problem.
    Commercial surrogacy is deemed legal in India since 2002. There is no codified
    surrogacy law in India as the ART Bill is yet to be placed &passed in Parliament.
    Surrogacy Agreement, is the only base which governs the parties. Over the last
    decade or so, India has become a major destination for “reproductive tourism for
    foreign couples. Each year, couples from abroad are attracted to India by so-called
    surrogacy agencies because cost of the whole procedure in India is as less as one
    third to one- fifth of what it is in United States &United Kingdom, for invitro
    fertilization and other treatments, coupled with high-qualified medical care and
    advanced technologies, the sloppy regulatory framework to protect the rights of
    surrogate mothers and the babies, the significant reserve of reproductive workers,
    knowledge of English language and the birth certificate in the name of the
    intended mother.
    Health industry estimates put the size of Indias surrogacy business at $2.5 billion
    industry with 20% growth per annum. Nearly 65-70% of the contractors looking
    for surrogate mothers are foreigners. Considering the growing number of surrogacy
    cases in India and the challenges that the surrogacy would face in future, the
    government of India decided to come up with a law which would govern the
    surrogacy and ART in India. The Indian Council of Medical Research (ICMR)
    issued Guidelines in 2005 which prescribed conduct and use of ART procedures
    or treatment by fertility clinics. In addition to these, there is Law Commission
    Report No. 228 of the year 2009. Subsequent to this the ART (Regulation) Bill
    2010 was formulated by the Union Ministry of Health & Family Welfare to
    legalized commercial surrogacy. Later upgraded it to The Assisted Reproductive
    Technologies (Regulation) Bill – 2013, 2014 and then to 2015. However in March
    2014, Home Ministry guidelines was passed, which are applicable only to
    foreign couples restricts the choice of surrogacy to heterosexual couples whereas
    the ART Bill permits surrogacy by all including single or unmarried; there is no
    bar on sexual orientation and on nationality. Subsequently in draft bill 2015, the
  • government tightened visa regulations for foreign couples desirous of
    commissioning surrogacy. They were required to travel on medical visa instead of
    a tourist visa for the purpose. However in November 2015, going a step further, the
    government has barred surrogacy for foreigners. The Government wants to
    limit surrogacy to infertile Indian married couples. The Assisted Reproductive
    Technologies (Regulation) Bill – 2016 incorporate the changes and await to be
    placed in Parliament.
    However in absence of legislation, Commercial surrogacy breeds exploitation,
    abuse and misery. Although the poster surrogates is typically a white, blonde,
    smiling women who are carrying a baby in order to make a childless couple happy,
    the truth is far less pleasant. In a developing country like India where poverty is a
    major concern, the poorer husbands are motivated to direct their wife for surrogacy
    as an income generating option, ignoring health and longterm consequences from
    repeated pregnancies with the excess &inappropriate use of commercial surrogacy
    facilitated by unscrupulous fertility clinics for greater profits and exploitation
    of surrogate mother by keeping them in isolation as well as without knowledge
    or copy of surrogate agreement in almost 99% of cases. Nevertheless
    Commercial surrogacy, for hundreds of women is a livelihood and a way to feed
    and educate their own children. Majority of them are un-skills labor/ house-maid
    and have no other way to earn a living. Thus exploitation in this industry is easy
    in absence of any laws governing the industry, making surrogate mothers,
    most vulnerable. Apart from numerous ethical, social, legal, medical and
    psychological (emotional) issues associated with surrogacy, which require urgent
    need for implementation of law in order to protect for interest of surrogate mother,
    commissioning parents and surrogate child.
    Accordingly India needs a law to regulate what is estimated to be a $2.5 billion
    industry, were foreigners forms 65-70% of the business. Therefore banning the
    practice for foreigner is not the answer. In place of differentiating between
    Indian and foreign, the strict regulation is a better way to go than banning it
    completely as ban on commercial surrogacy would only lead surrogacy clinics
    aimed at the more lucrative foreign market underground, further
    endangering both mother and baby.
    Effective legislation should provide protection to the vulnerable surrogate
    mother and child. By insuring them with the medical/ health & life insurance
    in order to safeguards them from probable health hazards and protecting
    surrogate mothers from been paid less than a tenth of the total amount by the
    clinics, with added checks and balances to prevent exploitation by foreign
    couples

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