Print edition : October 14, 2016

Dr Soumya Swaminathan. She finds the Bill comprehensive. Photo: K. Pichumani

Interview with Dr Soumya Swaminathan, Director General, Indian Council of Medical Research.

THE regulation of fertility clinics and of surrogacy has been in discussion for nearly one and a half decades, though governments at the Centre have been reluctant to deal with the issue. It was only after the Supreme Court got involved that the present government started acting. Dr Soumya Swaminathan, who took over as the Director General of the Indian Council of Medical Research (ICMR) in August 2015, felt that surrogacy was a significant aspect touched upon by the Assisted Reproductive Technology (ART) Bill and it was good that it had been taken up. She explained the urgency behind drafting the Surrogacy (Regulation) Bill and the role of the ICMR in the process, especially its role in drafting the ART Bill, from which the surrogacy Bill was crafted. Excerpts from an interview she gave Frontline.

The Surrogacy (Regulation) Bill, 2016, has been cleared by the Union Cabinet. What were the reasons for rushing it through? Does it address the entire gamut of issues that were present in various versions of the Assisted Reproductive Technology draft Bills?

There was a draft ART Bill that the ICMR formulated many years ago. It went through many consultations. Last year, there was a bit of urgency on surrogacy as there were many parliamentary assurances, and then there was the Jayashree Wad case—a PIL [public interest litigation petition] had been filed with the Supreme Court, and the Supreme Court asked the government what was being done to control commercial surrogacy. A number of complaints had come to the notice of the government and also to the notice of the National Commission for Women. It was for these reasons that the government decided to separate the surrogacy aspect from the ART Bill. We are hoping that the ART Bill will also move, as it also touches on areas that require regulation. The fertility business is a mushrooming industry, and there are so many clinics all over the place offering various services. We need to regulate sperm banks, ovum banks and related technologies. Most gynaecologists also feel that it should be regulated.

Last year, the government took a call in November to stop foreigners from coming in for commercial surrogacy. It stopped issuing visas to people who wanted to visit for this purpose. The Home Ministry issued a notification, and that controlled a good proportion of surrogacy as it was estimated that nearly 60-80 per cent of all surrogate pregnancies were commissioned by foreigners. That was a significant chunk. Lots of problems were also associated with this: babies not getting visas, or being abandoned, or one or the two twins getting abandoned, and so on. Subsequently, a draft Bill was placed on the website of our department, and we received inputs from 22 Ministries and 25 State governments and also 40 individual comments. The issue was placed before the Cabinet, which referred it to a Group of Ministers [GoM]. The group met four times to discuss various aspects. What was announced was what had been cleared by the GoM and subsequently by the Cabinet. The next step is that it will be introduced and discussed in Parliament and some of these clauses will come up for discussion.

How different is this Bill from the one that was put on the website?

It isn’t very different. Right from the beginning, it was decided that it [surrogacy] would be limited to married couples, that commercial surrogacy would not be allowed, and that it would be allowed only for a particular age group. What was new was the aspect of allowing only close relatives of the couple to act as surrogate. The ICMR did not draft the surrogacy Bill; it was the Department of Health Research in the Ministry of Health and Family Welfare. We drafted the ART Bill.

How comprehensive is the Bill, considering it has been carved out of the ART Bill?

The rules and regulations have to be framed. It is comprehensive in that it introduces altruistic surrogacy, bans commercial surrogacy, has provisions for insurance coverage for the mother and the child, and contains measures to ensure the legal status of the child and penal provisions for violating the law—up to 10 years of imprisonment—to discourage people from commercial surrogacy.

There are apprehensions that altruistic surrogacy may also be exploitative.

It is being confined to close relatives in order to guard against situations where someone brings in a poor woman—just as is being done now—and claims that she is a relative. We have seen that in organ donation. What kind of complications it might result in intra-familial ties, one doesn’t know. I know in the Indian tradition, adopting a sibling’s baby is an old practice. I know lots of people who will not adopt but will adopt a relative’s child or have a brother or sister have an additional child who then would be adopted.

The burden on the woman needs to be discussed more. The issue of infertility and the stigma around it needs to be discussed too. Why are people so hung up about adopting? I have seen women going through ART; it is a terrible torture and hardly 20-30 per cent is successful. The women subject themselves to lots of hormonal treatment, and I have heard about cases of cancer, too. Gynaecologists say it is not related. We have not been able to generate evidence that hormonal treatments lead to cancer. For that we need long-term studies. But it is certainly not good for the body. The women have to go through hormonal treatment to stop their periods and then also after the implantation is done. Once the baby is born, the lactation has to be artificially stopped. There are not only psychological but physical complications too. A doctor said on television that it was better than sex work. At least within the family there is some semblance of equality compared with the commercial contract. Only the very rich can commission surrogacy—it costs between Rs.10 lakh and Rs.50 lakh. What they give the women is one tenth probably. It is totally unregulated.

What has the ICMR’s role been in regulating the largely unregulated fertility industry?

We started our registry process in 2013, and 900-odd fertility clinics applied to get registered. We collected data from 600-700 clinics, but do not know how many babies were born by surrogacy. That was not asked for in the form. The registration by IVF clinics was voluntary. We were issuing No Objection Certificates every year in 60 to 100 cases. The NoCs were given, but one doesn’t know how many foreign couples came here, donated egg and sperm and commissioned surrogacy. This was the situation until the import of embryos was banned in November 2015.

All Ministries were involved in the consultations that led to the ban. There are lots of things to be regulated, sperm banks and ovum donation, for instance. That is again a big business. Young college girls are getting their eggs harvested and getting paid anywhere between Rs.10,000 and Rs.25,000. That is dangerous, and there are cases where they have died.

These young girls also do not know that they have a limited stock of eggs and when they would like to conceive it might be difficult. All these things need to be regulated, how many times it can be done. It is all there in the ART Bill. Surrogacy itself became a hot topic, so it had to be quickly taken up.

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