Surrogacy Laws In India

Sanjeev Sirohi
November 01, 2013 | Sanjeev Sirohi Web Exclusives, Surrogacy, Law, Sanjeev
Sirohi
Since last few years the use of surrogacy has gained currency in not only
India but the world over. Yet we must not forget that India along with
Russia , Ukraine and certain states of the US are among the few countries
that allow commercial surrogacy. It is imperative to understand first what
exactly it means . Surrogacy basically refers to a mutually agreed
contract in which a woman carries a pregnancy in lieu of money or
anything else agreed upon for another couple who want a child but the
woman is either infertile or physically incapable of carrying a developed
foetus . et me bring out here that the word surrogate is derived from
atin term !surrogatus" # substituted $ which basically means !appointed
to act in the place of" .
et me also bring out here that the surrogate mother is the biological
mother of the child who conceives it through artificial insemination with
the sperm that is taken from the husband . %lternatively , the wife may
be fertile but incapable of carrying a growing foetus . In such cases , the
child is conceived by in vitro fertili&ation using the wife's eggs and her
husband's sperm , and the resulting embryo is thus implanted in the
surrogate mother's uterus and the path to safe delivery of child is
cleared .
% survey by the (entre for Social Research # (SR $ has revealed that
about )* percent of surrogate mothers are kept in !shelter homes" and
paid Rs +,- lakh per pregnancy . .he survey which was conducted in /elhi
and 0umbai found that the surrogate mothers usually hail from poor class
, are illiterate and in dire need of money due to which they are ready to
make any compromises on issue of the amount of money to be paid to
them . .hey are made to sign the surrogacy contract which they are
incapable of understanding at all , are not given a copy of the written
surrogacy contract which is signed between surrogate mother , the
commissioning parents and fertility physicians 1 doctors and are therefore
exploited to the hilt by the doctors 1 fertility centres as well as their
families on most occasions .
Surrogate mothers are often forced to live in secrecy , in closely guarded
rented homes , with limited access to their families . In /elhi , such
rented homes are mostly concentrated in places like 2anakpuri and .ilak
3agar . 4ne such !home" in 0umbai was a cramped one,room facility
with five beds and ((.5 cameras to monitor the women's movements .
%gents who recruit the surrogate mothers get Rs 6,***,7*,*** per
candidate . .he survey which is backed by the 8omen and (hild
/evelopment ministry , has asked the (entre to discourage commercial
surrogacy and put in place a legal framework to prevent exploitation . It is
no hidden fact now that almost a fourth of the !commissioning parents"
who pay Rs 7*,-* lakh for a surrogate child, admitted their preference for
a son . %bout 99 percent said they had opted for a sex determination test,
and 9 percent said they had the pregnancy medically terminated for
!social reasons" : researchers felt this was a euphemism for their
preference for a son .
.he survey while ;uoting the I(0R director claimed that approximately
9*** babies are born every year through commercial surrogacy , and
cited (II figures that claim surrogacy is a < 9.+ billion industry in India ,
because it is largely unregulated and cheaper . (linics function in tight
cli;ues , with unrelated centres like dental clinics sometimes assisting
fertility clinics . (SR director Ran=ana >umari said that , !.here are many
other issues besides sex selection . .here are countries which do not allow
surrogacy , what would be the nationality of the child when the intended
parents are from that country ? %bout -* percent couples opting for
surrogacy are foreigners ." She further added that , !.here is also a
practice of impregnating multiple women with an embryo of the same
couple to increase the chances of pregnancy . 8hen one woman becomes
pregnant , the others are given pills to terminate the pregnancy without
their knowledge. %nd those women do not get any payment ."
.here are even !discounts" offered for multiple surrogates , found
researchers , citing the example of a centre that offered a surrogate
mother for Rs 7+ lakh and two for 76 lakh .8hile surrogate mothers may
be told that they are rendering great service to a childless couple , a
doctor told a (SR researcher that they are mere bodies doing something
that another woman cannot do : much akin to hiring a maid servant . It is
also disturbing to see as the study found that for the surrogate mothers ,
the money they earn is often spent on household expenses : like paying
for an asbestos shed , for the husband to start a new business , or even
bribe his way out of a criminal charge
%ccording to the study by the (entre for Social Research , India has
emerged as a hub for surrogacy , with /elhi alone reporting more than
9*** cases annually . .he figure for 0umbai certainly would not be less .
.he study says this is multi,billion dollar industry being driven by
foreigners , )* percent of parents who opt for surrogacy are Indians while
-* percent are 3RIs and foreigners . .he commissioning parents pay
anything between Rs -*,-@ lakh for a surrogate baby , but the surrogate
mothers receive barely Rs 9,+ lakh . It is most unfortunate that there is
no law on surrogacy in the country .
It must be highlighted here that with an unregulated surrogacy industry
booming in India, it has been observed that in many cases rich couples
are preying on domestic helps and housemaids coercing them to step up
to the task as per their whims and fancies which they do under financial
duress . It is thus found that there is little or no protection for the
surrogate mother controlled in the most part by a web of middle,men
with medical practitioners opting to turn a 3elson's eye to all such not,so,
straight and controversial transaction . .hese are part of the conclusions
drawn from a study on the surrogacy industry by 3A4 , (entre for Social
Research # (SR $ .
8e cannot be oblivious of the fact that the study which was conducted
among 7** surrogate mothers in /elhi and 0umbai says that doctors
refer to the transaction as !maid business" . (II has estimated the
industry to be over < 9 billion a year . Ran=ana >umari who is lamented
that , !/ue to the commerciali&ation of surrogacy , the plight of the
surrogate mother and the unborn child is often ignored . .here is a need
for a concrete legal framework to monitor and regulate the existing
surrogacy system to safeguard the interests of surrogate mother and the
child ." Releasing a report !Surrogacy 0otherhood B ethical or
commercial ?" supported by the 0inistry of 8omen and (hild
/evelopment she said that there is no pay payment structure for
surrogate mothers . %round -) C of the respondents in /elhi , and -- C
in 0umbai said that they received Rs + lakh to Rs +.DD lakh for being a
surrogate mother . It is also worth noting here that among those
interviewed , )E C in /elhi and 6E C in 0umbai said that they were
employed mostly as domestic helps earning more than Rs +*** a month .
It is imperative to mention here that the aw (ommission in its Report
3o. 99E in %ugust 9**D dwelt on the need for legislation to regulate
assisted reproductive technology clinics as well as rights and obligations
of parties to a surrogacy and the relevant recommendations made in this
regard are as under B ,
7. Surrogacy arrangement will continue to be governed by contract
amongst parties , which will contain all the terms re;uiring consent
of surrogate mother to bear child , agreement of her husband and
other family members for the same , medical procedures of artificial
insemination , reimbursement of all reasonable expenses for
carrying child to full term , willingness to hand over the child born
to the commissioning parent#s$ , etc . Fut such an arrangement
should not be for commercial purposes .
9. % surrogacy arrangement should provide for financial support for
surrogate child in the event of death of the commissioning couple or
individual before delivery of the child , or divorce between the
intended parents and subse;uent willingness of none to take
delivery of the child .
+. % surrogacy contract should necessarily take care of life insurance
cover for surrogate mother.
-. 4ne of the intended parents should be a donor as well , because the
bond of love and affection with a child primarily emanates from
biological relationship . %lso , the chances of various kinds of child,
abuse , which have been noticed in cases of adoptions , will be
reduced . In case the intended parent is single , he or she should be
a donor to be able to have a surrogate child . 4therwise , adoption
is the way to have a child which is resorted to if biological
# natural $ parents and adoptive parents are different .
@. egislation itself should recogni&e a surrogate child to be the
legitimate child of the commissioning parent#s$ without there being
any need for adoption or even declaration of guardian .
). .he birth certificate of the surrogate child should contain the
name#s$ of the commissioning parent#s$ only .
6. Right to privacy of donor as well as surrogate mother should be
protected .
E. Sex,selective surrogacy should be prohibited .
D. (ases of abortions should be governed by the 0edical .ermination
of Gregnancy %ct , 7D67 only.
.he %ssisted Reproductive .echnologies # Regulation $ Fill , 9*7* is an %ct
to provide for a national framework for the accreditation , regulation and
supervision of assisted reproductive technology clinics , for prevention of
misuse of assisted reproductive technology clinics , for prevention of
misuse of assisted reproductive technology , for safe and ethical practice
of assisted reproductive technology services and for connected matters. It
cannot be denied that as of now , anyone can open infertility or assisted
reproductive technology # %R. $ clinic and no permission is re;uired to do
so . It is therefore pertinent that keeping the public interest in mind the
functioning of such clinics needs to be regulated to ensure that the
services provided are ethical and that the medical , social and legal rights
of all those concerned are protected . .his explains the need for this Fill .
It is commendable to learn that Section 9@ of this Fill expressly bars sex
selection . Hurther , Section 97 imposes duty of the %R. clinic to obtain
written consent from all parties concerned . %lso , under Section 99 of this
Fill , it is the duty of the %R. clinic to keep accurate records .
It has been reliably learnt that the /irectorate Aeneral of Iealth Services
has proposed a new law according to which women over +@ and below 97
will not be eligible to act as surrogate mothers in India and this is also
contained in Section +- # @ $ of the %R. Fill . .his is being done not only
to make sure that only young and healthy women act as surrogate
mother but also to check the unbridled commercialisation of surrogacy
that is spreading its tentacles far and deep . .he Aovernment has also
proposed strict measures in the %ssisted Reproductive
.echnology#Regulation$ Fill which basically aims to regulate the booming
business of surrogacy to check its blatant misuse .
.o prevent the commercialisation of surrogacy , no women will be allowed
to act as a surrogate mother for more than three successful births and
this includes her own children and a man can donate sperm only 6@ times
. Fut we must note here that under the %R. Fill , Section +- # @ $ inserts
the proviso that !no woman shall act as a surrogate for more than five
successful live births in her life , including her own children" and there
must be at least a two,year breaks between deliveries . It has also been
stipulated that the surrogate baby of a separated or divorced couple will
remain their !legitimate child" if both the parties had consented to
assisted reproductive technology to have baby . It has also been made
clear that the birth certificate will have the names of the generic parent 1
parents . Hurther , it has been provided that only Indian citi&ens can act
as surrogate mothers in this country . %ll clinics and sperm banks will
have to be registered . Indian (ouncil of 0edical Research # I(0R $ has a
list of 79** clinics , of which )** have already started the procedure for
registration , other than 7@* sperm and ovum banks .
.he Fill makes a strong pitch for the segregation of %ssisted Reproductive
.echnologies # %R. $ clinics and gamete banks , pinning many unethical
practices on these two being owned and managed by the same
individual . Section +- # 99 $ stipulates that only Indian citi&ens shall have
a right to act as a surrogate and no %R. bank 1 %R. clinics shall receive or
send an Indian for surrogacy abroad . Section +) of the Fill confers right
upon the child on reaching the age of 7E to ask for any information ,
excluding personal identification , relating to the donor or surrogate
mother . Section +6 prohibits advertisement relating to pre,natal
determination of sex and imposes punishment for a term which may
extend to @ years and with fine which may be specified on its
contravention . Section +E which deals with offences and penalties clearly
stipulates that :
7. %ny medical geneticist , gynaecologist , registered medical
practitioner or any person who owns or operates any assisted
reproductive technology clinic , or is employed in such a facility and
renders his professional or technical services to such facility ,
whether on an honorary basis or otherwise , and who contravenes
any of the provisions of this act or rules made thereunder , shall be
punishable with imprisonment for a term which may extend to three
years and 1 or with fine which may be specified , and on any
subse;uent conviction , with imprisonment which may extend to
five years and 1 or fine which may be specified .
9. .he name of the registered medical practitioner who has been
convicted by the court under sub,section 7 of this section shall be
reported by the State Foard to the respective State 0edical council
for taking necessary action including the removal of his name from
the register or the (ouncil for a period of two years for the first
offence and permanently for any subse;uent offence .
+. %ny person who seeks the aid of assisted reproductive technology
or of a medical geneticist , gynaecologist or registered medical
practitioner for conducting pre,natal diagnostic techni;ues on any
pregnant woman for purposes other than those specified in clause
# 9 $ of section - of the Gre,natal /iagnostic .echni;ues # Regulation
and Grevention of 0isuse $ %ct , 7DD- # %ct @6 of 7DD- $ , shall be
punished with imprisonment for a term which may extend to three
years and with fine which may be specified , and on any subse;uent
conviction with imprisonment which may extend to five years and
with fine which may be specified .
-. .he transfer of a human embryo into a male person or into an
animal that is not of the human species shall be an offence under
this act and shall be punishable with imprisonment for a term which
may extend to three years and with fine which may be specified .
@. .he sale of any embryo for research is absolutely prohibited and
shall be an offence under this %ct punishable by imprisonment for a
term which may extend to three years and with fine which may be
specified .
). Use of individual brokers or paid intermediaries to obtain gamete
donors or surrogates shall be an offence under this act , punishable
by imprisonment for a term which may extend to three years and
fine which may be specified .
0any 3A4s are critical of the bill as it does not provide protective
provisions for surrogate mothers . .he Iome 0inistry has not been in
favour of granting visas to foreigners for surrogacy but has now eased the
norms allowing even individuals . It is commendable to know that the
/irectorate Aeneral of Iealth Services , which is an arm of the health
ministry , has sent suggestions that surrogacy services should be
available only to married infertile couples where at least one person is of
Indian origin . Surveys have found foreigners make up -* percent of the
clientele . In a recent survey by an 3A4 , 99 percent commissioning
parents admitted to a sex determination test and 9 percent admitted to
having medically terminated an earlier pregnancy for !social reasons" .
.his must stop immediately and there should be a complete ban on sex
determination test which discriminates between boys and girls and kills a
female child even before she is born . .his also involves changing the
mindset of the society . %nother grey area that needs to be addressed is
what would happen to a child born with some congenital problems . %ll
issues relating to surrogacy have to be resolved properly and correctly
because if this is not done , it has the capacity to unleash a lot of
malpractices in the society which I have already discussed in length
earlier .