Surrogacy in India

Surrogacy in India

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Surrogacy which is prevalent in almost all countries connotes advancement in Assisted Reproductive Technology (ATR) addresses the natural urge of humans to   procreate who are unable to do so because various reasons, including medical problems, old age, gender, gay marriages etc. Since 1970’s researchers have been striving to find ways to fertilize   human ovum outside the human womb. Breakthrough happened with the birth of first test tube, a female child Louise Brown on July 25, 1978 in UK. Robert Brown who achieved this feat was awarded 2010 Nobel Prize in “Physiology and Medicine for in-vitro Fertilization” (IVF). In India, Dr. Subhash Mukhopadhyaya produced second test tube baby Kanupriya Aggarwal @ Durga at Calcutta. But, unbearable ostracism from his own peers and the government impelled him to commit suicide in 1981. However, the Indian Council of Medical Research (ICMR) recognized his pioneering work in the year 2002.

Presently, IVF is the widely used technique to counter infertility. IVF procedure involves fertilization of ovum in a clinical lab and thereafter planting it in a woman’s womb to complete the term, who may either be the genetic mother or surrogate mother. The latter agrees to handover the child to the intending parents after birth either in lieu of monetary consideration for using her womb (derogatorily referred as “rent the womb”) which is termed as “commercial surrogacy”, or without any monetary consideration,   referred as “altruistic surrogacy”.

Surrogacy involves various complicated ethical and legal issues.  Sometimes as many as 6 persons are involved in IVF, viz. sperm donor, the ovum donor, the surrogate mother, intending parents (each of  them may belong to different nationality, race or religion), and, most importantly, the child born out of surrogacy. IVF raises complex legal issues like nationality, visa, civil and human rights of the child and surrogate mother etc.  However, in 2008 some of these issues did invite the attention of Apex Court in Baby Manji case. The court observed that availability of latest ATR technology, services of surrogate mother at cheaper cost and lax surrogacy laws has given impetus to booming “reproductive tourism” in India and there is need to regulate it.  Research by Quadra Capital, a health care private equity firm,  reveals that the total demand for IVF cycles India was 1 lakh in 2015 and is expected to touch 2.6 lakh by 2020.  ICMR issued certain pro-surrogacy guide lines from time to time viz. in the years 2005, 2008, and the ART Regulation Bill 2010 , but these lack legislative sanction.

The Ministry of Health & Family Welfare, GOI, has introduced The Surrogacy (Regulation) Bill, 2016 . The Bill prohibits commercial surrogacy.  Altruistic surrogacy is permitted for Indian infertile couples who have married for five years, are in the age group of 23 years to 55 years, are childless or whose child is suffering from incurable serious ailment. The intending parent must get an “essentiality certificate” from the prescribed authority. The surrogate mother should be between age of 25 – 35 years, must be “close relative”, and can act as surrogate mother only once in her life time.

The Bill was drafted on the experience of 18 surrogacy cases (11 foreign and 7 national). Single parents, same sex parents, LGBT community persons cannot get a surrogate child. Strangely the Bill does not define the most crucial expression ‘close relative’. The Bill fails to appreciate the reproductive rights of the women. The views of all stakeholders have not been taken into account. The presumption that only married couple are better parents  is only a conjecture as even singletons can be ideal parents. No study has been conducted as to why the foreigners who really what to have a ‘genetic child’ are not allowed to avail surrogacy services. In a county like India where 18000 poor farmers committed suicide last year are deprived the chance to improve their financial condition by getting some money from the genuine intending parents. The need is to strictly regulate the surrogacy to ensure non-exploitation of every kind. There must be serious introspection and dialogue with all the stakeholders and not get swayed by a priori notions that surrogacy other than altruistic is always exploitative, or “an invasion of capitalism over the Asian poverty”.

By

Prof. N. S. Bawa 

Faculty of Law, SGT University

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