India is becoming a haven for commercial surrogacy. However, lack of an effective law to check on surrogacy related issues can spawn dire consequences, observe Anil Malhotra and Ranjit Malhotra.
The primordial urge to have a biological child of one’s own flesh, blood and DNA, aided with technology and the purchasing power of money, coupled with the Indian entrepreneurial spirit, has generated a new market in India. This comes as a boon to childless couples around the world.
In a developed country like the UK, no contract or surrogacy agreement is legally binding. In most states in the USA, compensated surrogacy arrangements are either illegal or unenforceable. In some states in Australia, arranging commercial surrogacy is a criminal offence and any surrogacy agreement giving custody to others is void. In Canada and New Zealand, commercial surrogacy has been illegal since 2004, although altruistic surrogacy is allowed. In France, surrogacy, commercial or not is unlawful. In Israel, law only accepts the surrogate mother as the real mother and commercial surrogacy is illegal. What then prompts India to enact a proposed law to make surrogacy agreements legally enforceable is to protect the genetic parents, surrogate mother and the child.
India’s surrogacy boom began in January 2004 with a woman delivering her daughter’s twins, her own grandchildren. Today, India boasts of being the first country proposing to legalise both intra and inter-country commercial surrogacy.
Renting wombs is an easy and cheap option in India. Factors like relatively low cost of medical services, lack of any law to regulate, abundant choice of donors with similar racial attributes and easy availability of surrogate wombs are attracting foreigners and Non-Resident Indians (NRIs) to sperm banks and surrogate mothers in India. Surreptitiously, India has become a booming centre of a fertility market with its “reproductive tourism” industry, estimated at Rs.25,000 crore. “Assisted Reproductive Technology” (ART) has been in vogue in India since 1978 and today, an estimated 200, 000 clinics across the country offer artificial insemination, In Vitro Fertilisation (IVF) and surrogacy.
The complicated case of the Japanese baby Manji, born to an Indian surrogate mother using IVF technology, triggered off complex and knotty issues. The parents divorced and the mother disowned the infant. The grandmother of the infant petitioned the Supreme Court challenging the directions given by the Rajasthan High Court relating to production and custody of the baby. Following the directions of the SC, the Regional Passport Office in Jaipur issued an “Identity Certificate” to the baby on November 1, 2008.
Since Israel does not allow same-sex couples to adopt or have a surrogate child, an Israeli gay couple became parents in India on October 12, 2008 with the help of a Mumbai-based surrogate mother.
Child adoption in India is burdened with complicated lengthy procedures, be it under the Guardian and Wards Act, 1890 or the Hindu Adoption and Maintenance Act, 1956 resulting in adoption of IVF treatments or renting surrogate wombs. Dr. Ila Gupta, Infertility Expert, Mother & Child Hospital, informs, “A surrogate mother typically conceives after being artificially inseminated by Intrauterine Insemination with the man’s sperm. This is called ‘full surrogacy’ because the surrogate’s eggs and uterus have been used. More recently, IVF has made it possible for a surrogate to carry a baby that is completely the biological child of the infertile couple and is known as partial, gestational, or host IVF surrogacy. It is also possible for a surrogate to carry a donated embryo to term. Success rate is usually 40 to 45 per cent which depends on many factors like the procedure which the surrogate is undergoing; the fertility status of surrogate; the quality of embryos transferred and any associated medical problems.”
On the other hand, at a time when the world’s first test-tube baby Louise Brown born in 1978 in the UK has now herself become a mother and high-profile international adoptions by celebrities like Madonna and Angelina Jolie are glorifying international adoption, India should not lag behind. Noted Indian film actress Sushmita Sen inspires single women both in India and abroad to adopt children breaking conventional taboos and age-old practices. Resultantly, orphan girls are finding mothers in India and abroad. In the light of the above the position of surrogacy remains debatable.
“Appropriate provisions have been made in the Bill to ensure that ART is not misused to conceive a child of desired sex. The success rate of ART (in term of takehome- baby rate) is around 35 to 50 per cent in the best ART clinics in the world. In our country, few ART clinics are very good and their success rate is 35 to 50 per cent. However, few ART clinics are stating that their success rate is around 70 to 80 per cent, but it is difficult to comment on these figures. This is because of the poor infrastructure facilities, untrained, inexperienced or incompetent service providers (including both medical and paramedical staff) and not following guidelines. At times, failure (impossibility of going ahead with pregnancy after 6 to 7 months of pregnancy) leads to financial burden, physical and emotional hassles borne by the infertile couple in the absence of regulation. The Bill should be reconsidered and passed by the Parliament at the earliest and implemented strictly. The important issue of confidentiality has been addressed appropriately in the draft Bill.”
According to the agreement that parents get into, the exclusive legal right of the baby’s custody lies with the commissioning parents. When the contract is signed and also, as per Indian legal guidelines on surrogacy, ownership of the child is with the commissioning parents and not surrogate. It is written in the agreement and guidelines that no duty of care is there on the part of the surrogate mother towards the baby. If she ever breaches the law, agreement will be read and heeded.
In November 2007, the couple came to us and chose a surrogate mother with anonymous Indian egg donor. Surrogacy was done by using Dr. Yamada’s sperm. In March 2008, the couple got divorced. The baby was delivered here in July and the child was moved to Arya Hospital in Jaipur as Ahmedabad city was hit by serial bombing. The divorce of the couple sparked off the controversy as to who is the legal mother of the baby – surrogate, genetic or the intended mother (the divorce wife)? The contract showed that in case of divorce, the father had right over the baby. Therefore, Dr. Yamada had the right over the baby.
Once surrogacy is legalised in India, guidelines should be framed in order to help an infertile couple, who travel from all around the world to India. I would suggest establishment of a cell that would exclusively tackle the travelling need of foreign citizens. The problem with arrangement of travel documents is there with countries that do not recognise surrogacy. There should be clarity at least on the issue of citizenship of the child. All the legal problems should be taken care of by one forum to make it easier for the foreign couples going in for surrogacy.
Surrogacy in India is legitimate because no Indian law prohibits surrogacy. To determine the legality of surrogacy agreements, the Indian Contract Act, 1872 (the Act) would apply and thereafter the enforceability of any such agreement would be within the domain of section 9 of the Code of Civil Procedure (CPC), 1908. Alternatively, the biological parent(s) can also move an application under the Guardian and Wards Act, 1890 for seeking an order of appointment for a declaration to be declared as the guardian of the surrogate children.
Under section 10 of the Act all agreements are contracts, if they are made by free consent of parties competent to contract, are for a lawful consideration, are with a lawful object, and are not expressly declared to be void. Therefore, if any surrogacy agreement satisfies these conditions, it is an enforceable contract. Thereafter, under section 9 of CPC, it can be the subject of a civil suit before a civil court to establish all or any issue relating to the surrogacy agreement and for a declarations or injunction for the relief prayed for.
Indian Council of Medical Research (ICMR) issued Guidelines in 2005 to check the malpractices of ART which are non-statutory, have no legal sanctity and are not binding. They lack teeth and are often violated. In a phenomenal exercise to legalise commercial surrogacy, the Assisted Reproductive Technology (Regulation) Bill & Rules, 2008 (the Bill), has been posted online by ICMR for feedback, providing a national framework for the regulation and supervision of ART and matters connected therewith, or incidental thereto.
The Bill does not have a statement of object and reasons, but is a comprehensive document covering all aspects of surrogacy. It provides for national and state-level bodies regulating ART, procedures for egistration and complaints, duties of such clinics, sourcing, storage, handling and record keeping for gametes, embryos and surrogates, regulation on research, rights and duties of patients, donors, surrogates and children in extensor and also offences and penalties for any contravention.
Dr V M Katoch, Secretary (Dept. of Health Research) & Director General, ICMR informs, “Appropriate provisions have been made in the Bill to ensure that ART is not misused to conceive a child of desired sex. The success rate of ART (in term of take-home-baby rate) is around 35 to 50 per cent in the best ART clinics in the world. In our country, few ART clinics are very good and their success rate is 35 to 50 per cent. However, few ART clinics are stating that their success rate is around 70 to 80 per cent, but it is difficult to comment on these figures. This is because of the poor infrastructure facilities, untrained, inexperienced or incompetent service providers (including both medical and paramedical staff) and not following guidelines. At times, failure (impossibility of going ahead with pregnancy after 6 to 7 months of pregnancy) leads to financial burden, physical and emotional hassles borne by the infertile couple in the absence of regulation. The Bill should be reconsidered and passed by the Parliament at the earliest and implemented strictly. The important issue of confidentiality has been addressed appropriately in the draft Bill.”
We lost three children within three months of their birth for reasons not known in medical history; doctors call it Sudden Infant Death Syndrome.We got all possible medical tests done after that but in vain.We decided not to opt for any more children. However, I was curious to know the reason for this. With the help of Dr Nayana Patel we begot a child via surrogacy or IVF. Now, people ask as to why we went in for surrogacy instead of adopting a child. I always wanted to have a child of my own genetic composition. Although, ours is not a very conservative family yet I believe that there is always a difference between an adopted child and a child who is genetically yours. I have seen many people who have adopted a child and I somehow feel that there is often a disconnect between parents and the child.We decided that either we would have a child of our own or not at all.
“A surrogate mother typically conceives after being artificially inseminated by Intrauterine Insemination with the man’s sperm. This is called ‘full surrogacy’ because the surrogate’s eggs and uterus have been used. More recently, IVF has made it possible for a surrogate to carry a baby that is completely the biological child of the infertile couple and is known as partial, gestational, or host IVF surrogacy. It is also possible for a surrogate to carry a donated embryo to term. Success rate is usually 40 to 45 per cent which depends on many factors like the procedure which the surrogate is undergoing; the fertility status of surrogate; the quality of embryos transferred and any associated medical problems.”
The true incidence of surrogacy is difficult to know, as more often than not surrogacy is a private arrangement. Surrogacy arrangements can be commercial (not in the UK) where the surrogate is compensated financially by the commissioning parents, or they can be altruistic, where the surrogate chooses to help for reasons other than financial gain. Consideration must be given to the long-term psychological consequences for all concerned. Commercial surrogacy raises questions about paying for a child and the effect it has on the subsequent relationship between a parent and the child. Both parties must consider the possibility of the surrogate wanting to keep the child or the rejection of the child by both the surrogate mother and the commissioning parents in case of abnormality in the baby. Counselling for both parties is not only recommended but mandatory in the UK, where the implications of their decision can be explored in detail and recorded.
Many studies have concluded that surrogates report a variety of emotional reason for undertaking surrogacy. Many of these can be “wishes to enjoy parenthood, to feel self-actualised, to enhance their identity, and enjoyment of pregnancy.” It is an act of ‘giving’ that is personally meaningful to the surrogate, and because what is being given is of unique value, as being a surrogate mother can be a life-altering experience. They are more sympathetic of foreign women who cannot conceive. Ragone, who studied six surrogacy programmes, notes that “…without exception, when surrogates are asked whether they think of the child as their own, they say they do not.”Women who are concerned about the biological link to the baby choose gestational surrogacy. They typically hand the baby over without incidence. The consensus is that many gestational surrogates did not feel they would be giving up a child, since the child was not theirs to give.
The Bill does not address issues like the remedy available to biological parents to obtain exclusive legal custody of surrogate child, how to waive off the rights of the surrogate mother completely, how to restrict rights of the ovum or sperm, the status of child in case of divorced biological parents and most importantly whether the domain of international law provide an amiable solution to the rising complexities arising out of inter-country surrogacy settlements.
The Bill has grey areas — it has neither designated nor authorised or created any judicial body to resolve offences arising under it. It is not mentioned as to who is to impose penalties for this. The national and state advisory boards are the only authorities to promote ART Technology, surrogacy arrangements and related procedures. Their proceedings have been deemed to be ‘Judicial Proceedings’ before civil courts for limited purposes. However, how far these advisory boards will be able to perform them remains to be seen. There are issues of determining parentage, nationality, issuance of passport, and grant of visas. There is no forum defined which will look into solutions to these problems.
The complicated case of Japanese baby Manji born on July 25, 2008 to an Indian surrogate mother with IVF technology upon fertilization of her Japanese parents eggs and sperms in Tokyo and the embryo being implanted in Ahmedabad, triggered off complex, knotty issues. The Japanese biological parents divorced and the mother disowned the infant upon its birth in India. The grandmother of the infant petitioned the Supreme Court challenging the directions given by the Rajasthan High Court relating to production and custody of baby Manji Yamada. Her request to the Apex Court for permission for the infant to travel with her and for issuance of a passport under consideration with the Central Government was directed to be disposed of expeditiously. Following the directions of the Supreme Court dated September 29, 2008, the Regional Passport Office in Jaipur issued an “Identity Certificate” to the baby on November 1, 2008. Thereupon, the grandmother Emiko Yamada flew out to Japan with the baby. A pandora’s box has opened with a floodgate of questions and issues related to ethics and legality surrounding surrogacy with Japanese baby Manji’s case and even her citizenship status remained unclear. Baby Manji’s case is an eye opener. Thereafter, the Israeli gay couple’s case and now the German surrogate twins is a sequel of problem areas. Embassies, foreign missions and high commissions of different countries in India are looking at a resolution on these issues. Indian law must embrace the concept of vasudevayakatumbakam, i.e. ‘the whole world is my family’.
Rampant practise of surrogacy in some parts of India needs to be checked, controlled and channelised in a framework of law, which regulates the rights and duties of parties. The dire need of the day is to enact an effective law on surrogacy issues.
The ease with which relatively rich foreigners are able to ‘rent’ the wombs of poor Indian women creates the potential for exploitation. In a country crippled by abject poverty, how will the government guarantee that women will not agree to surrogacy just to be able to eat two square meals a day? Cases have been reported where young girls from orphanages or cash-strapped women have been ‘hired out’ for surrogacy. The surrogates themselves may never get any money, and even if they do, the poor women often have little choice. There are instances of desperate, poor women in India selling their own (biological) babies because they can’t feed the rest of their family. The new law, while regulating the surrogacy industry by standardising such things as contract terms and surrogate compensation, must address the core social, family and health issues. Though the Ministry of Women and Child Development is holding consultations across the country, it is yet to be seen how it proposes to resolve these thorny issues.
The Bill has grey areas — it has neither designated nor authorised or created any judicial body to resolve offences arising under it. It is not mentioned as to who is to impose penalties for this. The national and state advisory boards are the only authorities to promote ART Technology, surrogacy arrangements and related procedures. Their proceedings have been deemed to be ‘Judicial Proceedings’ before civil courts for limited purposes.
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