Abetting surrogacy

Print edition : November 07, 2008

Nineteen-day-old Manji Yamada at the Supreme Court in New Delhi on August 13. The future of the child, born to a surrogate mother, hung in legal limbo after the Japanese couple who planned to take her home got divorced.-RAVEENDRAN/AFP

The Bill on surrogate motherhood focusses more on protecting private-sector interests than on providing a regulatory mechanism.

COMMERCIAL surrogacy, though banned in several developed countries for obvious reasons, may soon become a reality in India thanks to the joint efforts of private medical establishments and the Union government. A Bill that seeks to legalise commercial surrogacy has been drafted by the Indian Council of Medical Research (ICMR).

Resistance, if any, to the legalising of commercial surrogacy is coming from health activists and womens organisations. Interestingly, the Bill, called the Assisted Reproductive Technology (Regulation) Bill and Rules, 2008, did not involve at any stage womens groups or public health activists in its drafting. In fact, several people wonder what a premier institution concerned with medical research has to do with a Bill like this. Regulation of surrogacy, many feel, would give a legitimate stamp to the commercial activity that is already under way. It is like saying we know you are exploited but here is a law that will ensure that you will be exploited less, said a health activist who also pointed out that by regulating commercial surrogacy, the government was in a sense facilitating the process for those in the business of Assisted Reproductive Technology (ART) as well as perpetuating stereotypical notions surrounding fertility, motherhood and, maybe, eugenics.

It is taken as a given that there is a burgeoning demand for children and that there are many childless couples,; and therefore, there is a demand for ART techniques. A special programme by the World Health Organisation (WHO) estimated that there are 60 to 80 million infertile couples the world over.

The ART industry in India, estimated at Rs.25,000 crore, has never had it so good. Inter-country and intra-country surrogacy abound. There are websites offering egg donors and surrogate mothers. There are phone numbers and other contact details. One website gives the cost of surrogacy through in vitro fertilisation (IVF) as $15,000. The costs vary, of course.

There are hardly any data available in the country on either the number of institutions devoted to ART practices or the donors themselves, their background, their spread and so on. Nor are there any data on the extent of commercial surrogacy.

The guidelines for accreditation, supervision and regulation of ART clinics were formulated in 2005 by the ICMR, but there is little evidence to show that there has been any check on commercial surrogacy. The guidelines are basically meant to provide optimum benefit of these newer technologies to appropriate persons by a skilled team of experts at affordable health and economic costs in all public and private facilities in the country. So the guidelines basically aid the proliferation of the technology. The Bill is an avatar of the same.

The guidelines stipulate the creation of a national registry, centrally maintained and accredited by the licensing authority. This shall contain records of treatment cycles and outcome. While the guidelines admit that there is a general element of risk associated with all ART procedures, the consent forms also state that at present there is no ethical objection to IVF or any related procedure for research or clinical application. The consent would include giving information to the donor about the various risk factors involved, including ovarian hyperstimulation, anaesthetic procedures and invasive procedures such as laparoscopy, the possibility of multiple pregnancies and the risks associated with them, ectopic gestation, increased rate of spontaneous abortion, premature births, higher perinatal and infant mortality, and possible side-effects.

A concept note prepared by the Ministry of Women and Child Development in February clearly states that the risks to the surrogate mother could be quite substantial. It notes that economically disadvantaged women could be lured into carrying the foetuses of wealthy childless couples. Even in cases of altruistic surrogacy, there is the possibility that the surrogate mother will be emotionally pressured to demonstrate family loyalty by carrying a child for a sibling. Anand district in Gujarat has reported a large number of commercial surrogacy cases ever since the guidelines were put in place.

Concerned about reports on the increasing misuse of surrogacy arrangements and the welfare of children born out of this, the Ministry organised a round table on June 25 this year. The recently drafted Bill does not have a preamble, a statement of object and reasons. It begins with the constitution of a National Advisory Board for Assisted Reproductive Technology, the chairman of which would be appointed by the Ministry of Health and Family Welfare. The board is to have 16 experts, of whom six would be women, all nominated by the Central government. The functions of the advisory board are confined to promoting the cause of reproductive technology The draft legislation provides for State boards, which would more or less perform the same function as the national board.

The Bill directs that ART clinics, semen banks and research organisations that use human embryos for study, which are operative on the date of notification of the Act, should obtain temporary registration within six months of the notification by the State board and regular registration within 18 months of the notification. Activists, however, are baffled at the notion of temporary registration. And more peculiarly, if the agency applying for temporary registration does not hear from the State Registration Authority within 60 days of receipt of the application , the clinic would be deemed to have received temporary registration. If this is not facilitation of ART clinics, then what is? wondered a health activist.

There are certain ludicrous provisions as well. Under the section titled duties and rights of donors, it is laid down that no ART procedure shall be conducted unless the donor has obtained the consent in writing of his or her spouse. Given the low level of negotiating rights of the poor and especially women in reproductive matters, it is highly unlikely that there will be any spousal objection in a commercial transaction.

The Bill allows individuals or couples to obtain the service of a semen bank or advertise to seek surrogacy. The advertisement for a potential surrogate mother should not contain any requirements pertaining to caste, ethnic identity or descent of any of the parties involved in surrogacy. No ART clinic shall advertise to seek surrogacy for its clients.

A couple with the baby born to them with the help of a surrogate mother, at a private infertility treatment hospital in Thiruvananthapuram, Kerala.-S. MAHINSHA

But what is detrimental to the health of the surrogate mother is the provision that allows for multiple pregnancies in the event of failure in transferring the first embryo. The Bill allows up to three commissioned babies. That is, the surrogate mother can accept, on mutually agreed financial terms, at the most two more successful embryo transfers for the same couple.

The Bill even facilitates surrogacy options by foreigners. It lays down that a foreigner or a foreign couple not resident in India or a non-resident Indian (individual or couple), seeking surrogacy in the country, shall appoint a local guardian who will be legally responsible for taking care of the surrogate during and after the pregnancy until the child/children are delivered to the foreigner or foreign couple by the local guardian. There is nothing at all in terms of legal or other liabilities to protect the surrogate mother in case complications arise after the delivery or after the process of surrogacy is over.

A question that activists, health experts and womens groups are asking is whether surrogacy can be pursued and promoted as a public policy in India, given the abysmal track record as far as the health of women is concerned. Secondly, while the government encourages the small family norm, the ART guidelines and now the Bill actually allow for commissioning up to three babies. Third, public health experts like Imrana Qadeer feel that the government could do a lot more in terms of addressing the causes of secondary fertility, through effective antenatal and natal care.

Questioning the basis for a public policy on surrogacy, Imrana Qadeer points out that of the 8 to 10 per cent infertility in Indian women, only 2 per cent have primary sterility. Secondary sterility is often caused by tuberculosis, post-partum infections and reproductive tract infections. Imrana Qadeer argues that maternal mortality will not decline if surrogacy is promoted as part of what she calls legalised health tourism. The concept of promoting surrogacy as a public policy also denigrated the notion of gestational motherhood.

It is ironic that when there are laws banning commercial transaction of human organs and sex selection of babies, the ART Bill comes to legalise something that has a clear potential for exploitation of the poor. Surrogacy arrangements, if any, should be limited to altruistic ones to prevent commercialisation of the same.

The government argues that more than 65 per cent of the people have supported surrogacy through a public debate. Health Ministry representatives have acknowledged that the private medical sector literally gave all the inputs in the drafting of the guidelines of 2005. At that time, expertise existed with the private sector, they say. It can only be hoped that this time the government listens to a cross-section of people, otherwise there will be little chance of the Bill getting through Parliament.

Academics, activists and doctors issued a strongly worded statement on the draft Bill at a two-day consultation recently organised by Sama, a resource group for women and health. It stated that the Bill focussed more on promoting private-sector interests than in providing a regulatory mechanism; that it was inadequate in protecting and safeguarding the rights of women and children; that the Bill did not have a clear preamble outlining the purpose or a framework emerging from the governments own perspective; and that there was an urgent need for regulation, not just regularisation and promotion, of the present practice.

Urging ICMR not to rush with the Bill until a wider debate on it was conducted, the signatories to the statement said that the Bill would promote medical tourism and encourage commercial interests at the cost of womens health. Not only did the Bill compromise heavily on the health and rights of women and children, it also promoted invasive and expensive technology instead of encouraging adoption. Above all, the activists feared that the Bill reinforced patriarchal as well as eugenic tendencies. The signatories wanted the Bill to be kept open for public review and for public hearings involving womens groups and health groups for at least six months.

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