Surrogacy and law

The surrogacy Bill sends out a conservative political message about what kind of families are culturally acceptable. A complete ban on surrogacy, on the other hand, would have marked a progressive shift from patriarchal notions of progeny.

A November 2015 photograph of a baby born to a surrogate mother in Anand, Gujarat. The biological parents were British.

CHILDREN OF MEN , a British-American science fiction movie released in 2006, was based on a 1992 novel of the same name by the famous crime fiction writer P.D. James. The central theme of the novel, set in 2027, is global infertility. The story is about how a set of characters, mainly immigrants to the United Kingdom, help “deliver” a baby in a highly militarised and anti-immigrant environment. The book and the movie describe a fictional situation. Yet, infertility is a growing reality in parts of the developed world. Fifteen per cent of couples around the world are estimated to be infertile.

Infertility rates over the last one and a half decades spurred a human extractive industry euphemistically called “surrogacy”, involving huge amounts of money, mostly at the cost of the surrogate, who typically belonged to poorer sections of society.

While some 15-odd countries had a blanket ban on surrogacy, there were others that allowed it and recognised children born out of surrogacy. India was among the leading countries that supplied surrogates to a rich clientele. The legality of such arrangements was governed by the Indian Contract Act and guardianship laws.

The turning point

On August 24, the government approved, through a Cabinet decision, the introduction of the Surrogacy (Regulation) Bill, 2016. The proposed piece of legislation bans all forms of commercial surrogacy and allows only “ethical altruistic surrogacy”. It will regulate surrogacy by establishing a National Surrogacy Board, State Surrogacy Boards and other appropriate authorities in the States and Union Territories. The legislation is aimed at “effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples”. It allows all infertile married couples to benefit from “ethical surrogacy”.

The logic is that India became a “surrogacy hub for couples from different countries” and there were several instances of unethical practices, exploitation of surrogate mothers, and abandonment of children born out of surrogacy and of intermediaries importing human embryos and gametes. The government also relied heavily on the 228th report of the Law Commission of India, which recommended prohibition of commercial surrogacy.

The Bill allows only infertile Indian couples to opt for surrogacy. It bans foreigners and overseas Indians, unmarried people, single men and women, couples in live-in relationships or couples in same-sex relationships and married couples with one or more children, either adopted or biological, from using surrogacy. External Affairs Minister Sushma Swaraj, who headed the Group of Ministers that finalised the Bill, told the media that surrogacy was banned for foreigners and PIOs (people of Indian origin) as divorces were common in foreign countries. She said, too, that same-sex couples and couples in live-in relationships could not be allowed to use surrogacy because it would go against the Indian ethos. The Bill has been selectively carved out from the more comprehensive Assisted Reproductive Technology, or ART, (Regulation) Bill, 2014, drafted by the Indian Council of Medical Research (ICMR) in 2010, which viewed surrogacy as a medically accepted practice and looked into the entire gamut of reproductive technologies. Intensive consultations involving public health experts and women’s organisations were held on it, but it was never taken up by Parliament.

The 2016 Cabinet proposal

The proposed legislation deals with the issue in a limited manner and is based on assumptions that may not be true. (For instance, there may be an exploitative content in altruistic surrogacy, too.) It passes an unnecessary value judgement on single parents, live-in relationships and same-sex relationships. It conveys a political message that is in consonance with the regressive world view of the ruling party in the way in which it makes surrogacy available to only married heterosexual couples. Earlier, surrogacy was available to single men and women and same-sex couples, despite same-sex relationships being outlawed in India. It is, however, equally problematic to assert that the new Bill restricts the autonomy of women over their bodies and their reproductive rights—the right to be a surrogate. Such a view is based on the assumption that women who become surrogates do so willingly and voluntarily, with everything else in society being equal. That, unfortunately, is not true. The “income” of the surrogate is seen as empowering as she is able to use it to feed, clothe and educate her family. Clearly, the income from surrogacy was a “surrogate” for the state’s own inability to provide non-exploitative options of livelihood for its people.

The larger issue is that the Bill continues to consider surrogacy one of the means available to help infertile couples and does not therefore address the question of banning surrogacy altogether, as some countries have done. Had the government done so, it would have signified a progressive shift from the patriarchal notion of progeny that places a premium on women’s bodies. The autonomy of women, reproductive or otherwise, was never at play in the business of surrogacy. In the interviews that Frontline conducted with surrogates and egg donors in Delhi some years ago, none of them said that they did it of their own free will; in fact, they had a deep sense of shame as what they did was not accepted in their culture. The driving compulsion was economic and not any emancipating notion of autonomy.

The background and the impetus

The notion of regulating the surrogacy industry came up soon after the Indian government legalised it in 2002. The idea that a practice that had flourished with impunity could be regulated on ethical grounds was the biggest fallacy in the first place. It was not the exploitation of women that was of concern here but procedural complications. The only semblance of regulation was in the form of ART guidelines of the ICMR, guidelines that were meaningless as they lacked a statutory backing.

In February 2015, a Supreme Court advocate, Jayashree Wad, petitioned the apex court for orders decreeing that commercial surrogacy was illegal and violated the rights of Indian women and children under Article 21 of the Constitution. The petition contended that it was unethical and against public policy, amounted to the “exploitation of womanhood”, and exposed the child to various risks. It sought a ban on all commercial surrogacy contracts and prohibition of all doctors, hospitals and other institutions from aiding and abetting commercial surrogacy. In 2010, the apex court, while deciding a case ( Union of India vs Jan Balaz & others ), observed that larger issues of the rights of a child biologically belonging to foreign parents and born to a surrogate mother needed consideration.

The first documented case of gestational surrogacy dates to 1985. The same year, Britain passed the Surrogacy Arrangement Act, which prohibited commercial surrogacy. In the historic case of Baby M in 1986, a surrogate mother in the United States refused to give custody of the child to the biological mother. A court invalidated the surrogacy contract and awarded custody to the commissioning parents and visiting rights to the surrogate. In India, the first baby through gestational surrogacy was born in Chennai in 1994. In 1998, a fertility centre opened in Anand district, Gujarat. A year later, a doctor couple opened an infertility clinic that became a popular hub for foreigners. Anand soon became the centre of the country’s surrogacy industry. The website of this particular clinic claimed that 500 surrogate mothers had given birth to babies there. This unabashed promotion of surrogacy without any regulation, save for contracts between the parties concerned, and with scant legal protection for the surrogate drew criticism.

The business of infertility

According to a 2012 United Nations study quoted in Jayashree Wad’s petition, the surrogacy business was estimated at £400 million a year, with around 3,000 fertility clinics operating across India. The ICMR had identified 1,200 in vitro fertilisation clinics, of which 504 were listed as functioning as just clinics. In 2013, the Ministry of Commerce and Industry allowed the import of embryos, which the petition stated could not be considered “goods”. As two petitions had demanded a ban on the import of embryos, the government was given time until October 2015 to file its reply on the policy.

On October 26, the government imposed a ban on the import of human embryos except for research purposes. On November 3, 2015, the Ministry of Home Affairs notified Indian missions abroad not to issue visa to foreign nationals intending to commission surrogacy. The next day, another notification was issued by the Department of Health Research in the Ministry of Health and Family Welfare, laying down guidelines to be followed by surrogacy, ART and IVF clinics. At the time of banning the import of embryos to be implanted in surrogates, the government clarified that it was against commercial surrogacy and that the details would come forth only after the Bill on ART was enacted. The ART draft Bill, 2014 (drafted in 2008 and revised in 2010 and 2013), while disallowing surrogacy for foreigners, allowed surrogacy to non-resident Indians, people of Indian origin and foreigners married to Indians.

The petition contended that any trade involving human embryos was akin to trafficking. In July 2012, the Ministry of Home Affairs issued guidelines to foreign nationals intending to visit India for commissioning surrogacy. The then government did not find anything wrong with commercial surrogacy, but it wanted commissioning foreigners to come on medical rather than tourist visas.

Yet many issues remained unresolved, including those of the surrogate’s rights, the citizenship of the child born to an Indian surrogate mother but biologically belonging to foreigners, and the one of resolving the conflict between contradictory laws when commissioning parents belonged to countries that did not allow it.

It is estimated that the industry grew exponentially over the last one decade. Anil Malhotra and Ranjit Malhotra, in their book Surrogacy in India: A Law in The Making— Revisited , estimate that it was an industry worth Rs.25,000 crore involving 2,00,000 clinics across the country offering artificial insemination, in vitro fertilisation and surrogacy. In contrast, they say, 1,40,000 people died each year waiting for a kidney transplant as trading of organs was illegal. The Transplantation of Human Organ Act, 1994, banned the sale, loaning and commercialisation of the trade of human organs while the ART Bill, 2010, and the ICMR guidelines actually allowed the hiring of sperms, eggs and wombs through civil contracts. In 2012, the medical visa regulations allowed foreign couples married for two years to enter surrogacy contracts in India.

In 2008, the Baby Manji case ( Baby Manji Yamada versus the Union of India and Ors ) brought to centre stage the issue of the rights of the child. The baby, born using a gestational surrogate with the help of a donor egg (not from the biological or surrogate mother), faced a peculiar dilemma following the divorce of the commissioning parents. Japan had outlawed surrogacy and Indian law did not permit adoption by a single parent. The child’s grandmother filed a petition seeking custody of the child.

In the Baby Gammy case of Thailand in August 2014, an Australian couple abandoned a baby with Down’s syndrome but accepted its healthy twin. In October 2014, reports appeared of an Australian couple abandoning its surrogate baby in India.

Jayashree Wad’s petition was more comprehensive in that it sought a ban on all commercial surrogacy contracts and prohibition of all doctors, hospitals and other institutions from aiding and abetting in commercial surrogacy. Interestingly, Kirit Premibhai Solanki, a Bharatiya Janata Party (BJP) Member of Parliament from West Ahmedabad in Gujarat, moved a private member’s Bill in 2014 to regulate surrogacy. The Bill did not call for a ban on commercial surrogacy. Whether this had to do with the flourishing surrogacy business in Gujarat was not clear. The ART draft Bill of 2014, circulated in the public domain on September 30, 2015, did not provide for banning commercial surrogacy but restricted it to married infertile couples, NRIs and PIOs. Several features in the draft Surrogacy Bill were there in the ART Bill, 2014, too.

India, meanwhile, had become a surrogacy hub because of the relatively low costs involved. The fees for surrogates ranged between $2,500 to $7,000, while the cost for the procedure ranged between $10,000 and $35,000. The costs were estimated to be almost five times in other countries that allowed surrogacy. Around 15 countries had banned commercial surrogacy. It was reported in The Guardian that following the banning of commercial surrogacy in Thailand, Cambodia had become a major destination. (“Cambodia provides fertile ground for foreign surrogacy after Thailand ban”, by Sarah Haaji, August 19, 2016.) Another report by Melissa Davy in the same paper in 2014 revealed that there was a demand for revoking the ban on commercial surrogacy in Australia following cases of multiple pregnancies and premature births in commercial overseas arrangements. Three quarters of the parents in these cases had entered into surrogacy arrangements in India, stated the report, quoting Sam Everingham, founder of Surrogacy Australia. Advertising for surrogacy is legal in parts of Australia, though paid advertising is not.

Jayashree Wad had only one objective in filing her petition: a ban on commercial surrogacy. “My interest is limited to that. Let the Bill come,” the 78-year-old advocate told Frontline . She declined to comment on the conservative aspects of the draft Bill. “It really bothered me after reading reports about how these women were exploited and substantial benefit was being derived by doctors, hospitals and others involved in the process. Why should anyone go through it for someone else’s child?” she said. It was an article in a newsmagazine that got her thinking about the unfairness of it all. Women were implanted with multiple embryos to ensure a successful pregnancy. “The agreement was never executable by law. It was just a piece of paper. If there was an abortion in the fifth month, the woman would get nothing. I made the Central government a party to it [the petition]. That is why the government responded,” she told Frontline . She asserted that a ban on commercial surrogacy was necessary to stop Indian nationals, foreign couples and individuals from securing the services of surrogate mothers.

Jayashree Wad, who studied law after a postgraduate degree in botany, began practising in 1976. She refused to get herself photographed, saying that was against her professional ethics. The Central government, Jayashree Wad’s petition stated, could have exercised its obligation under Section 3 of the Foreigners Act, 1946. But it did not. There was no doubt that had the court not intervened in the matter of the two petitions, commercial surrogacy would have continued unabated.

The vexatious options

To ban or not to ban; to ban partly or wholly—these were vexatious questions. The Law Commission report, while recommending the prohibition of commercial surrogacy, approved of “altruistic surrogacy to the needy Indian citizens by enacting a suitable legislation”. Women’s organisations such as the All India Democratic Women’s Association (AIDWA) and several individuals have guardedly welcomed the ban on commercial surrogacy. Their concerns relate to the exploitation of poor women that surrogacy entails. They have demanded a wider consultation on the issue involving women’s groups.

Leading lawyers have also pointed out the unfairness inherent in a situation in which rich infertile couples are able to use surrogacy whereas poor infertile couples must accept their fate. The neoliberal environment over the last two and a half decades with its leitmotif of “less regulation” allowed the unfettered promotion of medical tourism of this kind and the simultaneous involvement and encouragement of the private medical sector that spearheaded the reproductive industry. This environment also ignored the concomitant human exploitation that flowered in the unregulated atmosphere. Had it not been for the public interest litigation petition and the Supreme Court, things would have continued much in the same way.