New Surrogacy Bill

Renting a womb will soon be a crime in India with the Cabinet approving a law banning commercial surrogacy and permitting only altruistic surrogacy in the interest of infertile couples. Altruistic surrogacy means engaging a close relative as a surrogate in a legal contract with the intending parents with no money involved. The draft surrogacy Bill, to be passed in the winter session of Parliament, allows surrogacy services only for married Indian couples wedded for five years with foreigners, NRIs, persons of Indian origin (PIO) holding overseas Indian citizenship cards, single parents, unmarried persons and those from the lesbian, gay, bisexual and transgender (LGBT) community kept out.

Even married Indian couples with a previous biological or adopted child won’t be allowed to engage a surrogate. Inspired by UK’s surrogacy legislation, the Indian version defines a surrogate as a “close female relative” of the intending couple, specifying that a surrogate can only be a married woman with at least one child of her own. The Bill says married Indian couples will be able to engage a surrogate only after they have exhausted all medical options of child-bearing. They will have to produce a certificate saying either is medically unfit to bear a child. The Bill says children born from surrogacy contracts will have all rights (including inheritance) which a biological child has. Abandoning a child will be a crime punishable with a Rs 10-lakh fine and jail up to 10 years. The Bill mandates registration of surrogacy clinics.

Main proposals:

• Only altruistic surrogacy permitted for married Indian couples
• The couple must be married for five years, the husband must be aged at least 26, wife 23
• They must get an infertility certificate after failing to conceive for five years
• Get parentage order from district magistrate & health insurance for surrogate mother
• Sign a legal contract with the surrogate mother accepting terms of the new Bill
• A close relative alone can be surrogate; single parents, the unwed & LGBT persons barred

Difference b/w Commercial & Altruistic surrogacy:

Commercial surrogacy: A process by which an individual or couple pays a fee to a woman in exchange for her carrying & delivering a baby. At birth, the child is turned over to the individual or couple, either privately or through a legal adoption process. Russia, the Ukraine and some US states are among those that also allow commercial surrogacy.
Altruistic surrogacy: A process by which a person bears a child for an infertile woman or couple without any sort of monetary gain in return. Allowed in Canada, NZ, Greece, the Netherlands etc.

Reasons for Banning foreigners:

• Experts involved in drafting of the law say the decision on banning foreigners from accessing infertility treatment in India is driven by interests of children born out of such arrangements.
• There have been instances of foreigner couples abandoning children born to Indian surrogates due to a range of issues, including disability or birth of twins. An Australian couple recently refused to accept a child with Down syndrome.
• Earlier in 2009, the Supreme Court had stayed a Gujarat High Court order granting Indian citizenship to twins born to a German couple from a surrogate based in Anand, the surrogacy hotspot of India. Germany had then refused visas to these children as it doesn’t legalise surrogacy. India denied them citizenship for want of a law in this respect.

Arguments against commercial surrogacy:

• Womb seen as a market
• Commercial surrogates are exploited
• There are class divisions & racial divisions between surrogates, egg donors and intended parents
• Neither the surrogates nor the intending parents open up easily because they fear a social backlash.

Commercial surrogacy in India:

The first surrogate baby in India was born in 1994. Commercial surrogacy has been legal in India since 2002. The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. India is emerging as a leader in international surrogacy and a sought after destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK.

What makes India attractive destination for foreigners seeking a child?

• Cheaper than other countries
• Mushrooming of IVF clinics
• No regulatory framework
• Availability of wiling women

Moral dimension of the issue:

• From surrogate mother perspective, there is nothing morally or ethically wrong because the babies are conceived through “injection” (embryo implant) and not through sexual intercourse. Some of the surrogates were poor, some middle class, some illiterate, some educated. They belonged to all communities… their need for money is what linked them.
• For the intending parents, surrogacy is a boon which gives them the child they never thought they could have. For this they are willing to pay any amount and go to any lengths to protect and nurture the surrogate carrying the baby for them.
• For the fertility specialists, this is the job they have been trained to do.
• The problem lies with the bogus embryologists and doctors, the agents and touts who lure and cheat surrogates, as well as intending parents. They are the exploiters.

By: Dr. Vivek Rana