SHREYA KEDIA
A study backed by the UN in July 2012, estimated the surrogacy business in India at more than 400 million dollar a year, with over 3,000 fertility clinics in the country. According to the Indian Council of Medical Research, approximately 2,000 babies are born through commercial surrogacy every year. The reason for such socking figures is the legal sanction granted to commercial surrogacy, which surrogacy seekers, both within and outside the country, had been enjoying since 2002.
Foreigners flocked into the country in large numbers to use the services of IVF clinics, hospitals and surrogate mothers. Advanced medical facilities, wide range of treatment options, cheap medical services, availability of potential surrogate mothers etc fueled international demand. Resultantly, the practice of surrogacy turned into a massive business. Not only this, it was also vulnerable to grave abuse and misuse.
The problem with commercial surrogacy in India is two dimensional – ethical and legal. Legal complexities with regards to surrogacy started emerging in 2008, when a Japanese couple contracted a baby from an Indian woman who served as a surrogate. But before the woman could deliver the child, the couple got divorced. The new born was left parentless and was caught in a legal web between two countries.
It should not come as a surprise that in most countries, surrogacy is illegal. Australia recognises only altruistic surrogacy through friends and relatives. In China, surrogacy in any form is banned altogether. The UK recognises only altruistic surrogacy through blood relatives. India is probably the last one opting to put a ban on commercial surrogacy.
The problem with commercial surrogacy in India is two dimensional – ethical and legal. Legal complexities with regards to surrogacy started emerging in 2008, when a Japanese couple contracted a baby from an Indian woman who served as a surrogate. But before the woman could deliver the child, the couple got divorced. The new born was left parentless and was caught in a legal web between two countries.
In yet another shocking case in 2012, an Australian couple abandoned one of their twin babies born to a surrogate India only because they already had a child of the same sex. This case had forced the Supreme Court to intervene. While the ICMR released guidelines to make commercial surrogacy legal in India, it failed to deliver on it due to the lack of legislative backing.
These incidents highlight the dire need to provide a legal framework for the surrogate mother and the child. And also to curb the growing menace of unethical surrogacy which had until now been misused by doctors and surrogate parents alike only to turn it into a massive lucrative business. It is in this sense that the draft surrogacy Bill, cleared by the Cabinet last month, should be seen.
The Surrogacy Regulation Bill, 2016, gives legal sanction for surrogacy to only married infertile Indian couples who have been legally married for at least five years. It bars married couples who have biological or adopted children, single parents, live-in partners, NRIs, foreigners and homosexuals from opting for surrogacy services. The Bill recognizes only altruistic surrogacy through close relatives. Additionally, it proposes that the surrogate mother should be married and should have given birth to a healthy baby earlier.
Many have welcomed the Bill, saying that it will go a long way to not only regulate unethical practices, but will also stop exploitation of women. Others have said that the Bill will do more harm than good. Some have also opined that, while providing for a solution, the legislation seeks to take away one ill only to infest another. It has been branded as discriminatory and ill conceived. Doctors and gay rights’ activists, who are the worst hit, have termed the Bill as ‘anti-liberal’.
Undoubtedly, the Bill seeks to protect the reproductive health of the surrogate mother and goes a step ahead to protect the future of the child by providing a legal course. Poor economic conditions had made women susceptible to this industry. Women, generally from the lower strata, were not only being exploited, but were also paid a meager amount.
Definitely, there are certain concerns that need to be addressed. While limiting a women’s choice of surrogacy, the Government must also provide for an alternate source of earning for the surrogate mothers who will lose their only source of income. Also, the Government must not close all options for single couples and homosexuals seeking parenthood. Adoption is one option for them. Efforts must be made to simplify adoption procedures in the country.
It must also be kept in mind that this is just a draft Bill which is in the initial stage. There is a long process before it gets passed in Parliament. The Bill, during the Winter Session of Parliament, will be open to debate. As Health minister JP Nadda said, “The Bill is open to improvements.” Surrogacy ought to be looked in medical terms – it is a medical solution to those who have a medical problem. It is in this sense that the Government’s conditions on who can opt for surrogacy, and who a surrogate can be, should be viewed.
(The writer is a journalist with an interest in social issues)