Banning commercial surrogacy is an ill-thought, knee-jerk reaction of the Government which has erroneously equated it with something like organ donation and transplant. The two are totally different and the basic premise of equating surrogacy with an organ trading law is born out of confusion and misinformation. Commercial surrogacy is entirely different from organ donation and trading. In the latter, you subject the patient to high risk surgeries and anesthesia procedures. The surrogate is exposed only to the normal risk of pregnancy. As for exploitation, the commercial aspect is taken care of so where is the exploitation?
The Bill is trying to protect the rights of the surrogate but it is in many ways not looking into aspects of personal choice both of the intended parents and the surrogate. Infertility being a growing case in India, putting a cordon around childless couples is a draconian measure and full of potential to push the so-called “trade” into the black market zone.
The other fear of children born thus, being left behind is also unfounded as that is a rarest of rare occurrence, especially in the wake of detailed contracts and legal arrangements being made in all surrogacy procedures much before the embryo transplant is done.
Surrogates mostly come from lower middle class backgrounds and a weak socio-economic structure. They often have to work for unregulated hours as maids with meagre salaries and vulnerability to mental and physical abuse. Isn’t that exploitation? On the other hand, the handsome consensual surrogacy amount drastically changes their lives, gives them the means to educate their children and upgrade their life comprehensively.
When we started the surrogacy programme back in 2009, I ensured that the surrogate knew all aspects of the programme she was signing up for and that there was consent by not just her but also her husband. When I talked to them about it, they were quite happy to get into this in the name of altruism and also because the compensation is pretty handsome and life altering for them. If it is with their consent, it cannot be deemed exploitation. Each doctor takes into account the surrogate’s health, takes care of her needs, examines risks if any to her and only then drafts her into the surrogacy programme.
I wonder why the Government is yet to act in regulating the maid business which is a national scourge. Cleaning toilets is exploitation, washing other people’s dirty linen to make ends meet is exploitation staring in your face. What is the Government doing about that? Why take surrogacy, why virtually equate it to something as dastardly as human trafficking? Why were the ART committee, mandated to study the issue and lay down recommendations for the Government to follow, so completely ignored? There are some answers that the Government needs to give.
What the Government needs to do is look at the entire issue of surrogacy in a more holistic way. In its rush to ban commercial surrogacy, it has not thought about the childless couples. Getting a known surrogate, which the Bill proposes, is very difficult. In India, nobody talks of fertility openly, more so when donor eggs and sperms are involved. So bringing someone from the family as a surrogate is not happening. In my long association with this subject, I have seen couples sometimes bringing in their friends or co-workers as surrogates but only once I have seen a case in which a couple came with a sister-in-law as proposed surrogate.
Then there is this huge issue of how do we ascertain the authenticity of a known surrogate? A sister-in-law has no blood connect with the couple. Where is this known surrogate coming from? How do we know she is, indeed, a relative? With this strict norm that the Bill propagates, coercion is definitely going to be more and legal coverage less. So, why go into a realm where exploitation will be more? The thing to do is regulate, not ban commercial surrogacy.
It is not as if the Bill will close down fertility clinics completely. Surrogacy is just a part of assisted reproductive treatments. So other fertility managements will continue even if surrogacy will stop.
Then there is issue of a jail term and stiff penalty. Doctors, as a community, are all very worried about this. As of now, fertility clinics are being run under the IMCR guidelines which were revised some years ago but are still to attain legal sanction. Think of it. An egg donor gets complications or suffers a health casualty & the doctor will be jailed immediately. This is not fair at all. Till it is proven it is due to medical negligence, how can you penalise the doctor? The doctor community is getting very peeved with the presumptions made on them, that they are prone to corruption, that they are prone to negligence.
Instead of banning commercial surrogacy, the Government would have been prudent had it introduced some regulations. There are two aspects to the issue: Regulation of IVF centres, proper accreditations & ensuring that people with proper training & facilities run centres.
In the UK, for example, there is the Human Fertilisation and Embriology Act which monitors IVF clinics. In India, we do not know if the many mushroomed centres follow the norms. The effort should be to regulate healthcare, both at the provider and service levels and not ban a practice that surely benefits the growing lot of childless couples. I am completely for commercial surrogacy. We should legalise it. There should be checks and balances so that all parties are doing what the promise is. A legalisation on validity of IVF centres is needed. Effort should be to strictly regulate their standards and procedural programmes.
Surrogacy is not just about gay couples, single parents and celebrities. It deals with the serious medical problems of women who cannot procreate. Tuberculosis in the uterus is a major problem which leads to permanent infertility. Then there are several women who are born with ovaries but no uterus. How do they have a baby? You can check the data regarding severe defects in the uterus, heart disease and secondary pregnancy complications, all of which can be addressed by surrogacy.
Having said this, you can’t limit choices. Any law that is anti-choice, is not principally right. The same goes for the commercial surrogacy Bill which is all set to become law.
The Indian Council of Medical Research estimates the business of Surrogacy in India to be worth 450 million dollars annually, while private estimates suggest that this service is worth approximately 2.3 billion dollars
India has more than 2,000 commercial surrogacy clinics that will have now to be registered under the National Surrogacy Board
Stiff bill to pay
- The surrogate mother must be a ‘close relative’ of the intending couple. The Bill doesn’t define the term ‘close relative’.
- The intending couple must be Indian citizens & married for at least five years with at least one of them being infertile.
- The Bill permits surrogacy only for couples who can’t conceive a child. This procedure isn’t allowed in case of any other medical conditions which could prevent a woman from giving birth to a child.
- The surrogate mother & the intending couple need eligibility certificates from the appropriate authority.
- No payment other than reasonable medical expenses can be made to the surrogate.
- Undertaking surrogacy for a fee, advertising it or exploiting the surrogate mother will be punishable with imprisonment for 10 years and a fine of up to `10 lakh
- For an abortion, in addition to complying with the Medical Termination of Pregnancy Act, 1971, the approval of the appropriate authority and the consent of the surrogate mother is required.
Even NGOs and civil society were of the opinion that commercial surrogacy must be stopped. Exploitation of surrogate mothers was also an issue. The government decided to come out with the Bill keeping the Indian ethos in mind so that exploitation of surrogate mothers could be stopped
— JP Nadda, Minister of Health and Family Welfare
I’ve delivered close to 1,400 babies through surrogacy and in those, there were merely 25-30 cases of altruistic surrogacy. Couples don’t even let their nearest family members know that they’re opting for surrogacy. The new bill completely misses out on the critical aspect of privacy. Allowing only the ‘altruistic’ form of surrogacy will increase the cases of exploitation of close relatives, and can escalate underground surrogacies
— Dr Nayana Patel, Surrogacy & Infertility Expert, Akanksha Hospital & Research Centre, Gujarat
(The writer is Medical Director,Advance Fertility and Gynae Centre, New Delhi)