India govt moves to ban commercial surrogacy5 min read . Updated: 25 Aug 2016, 01:15 AM IST
Bill cleared by cabinet evokes fears that it could create an underground surrogacy network in India on the lines of the organ harvesting racket
New Delhi: The cabinet on Tuesday approved the introduction of a bill that seeks to ban commercial surrogacy—a practice known as ‘rent a womb’—and allow only infertile couples to bear a child using a surrogate mother.
If enacted, the Surrogacy (Regulation) Bill 2016 will allow only Indian citizens to have a surrogate child in India. Non-resident Indians or People of Indian Origin card-holders will not be allowed to take recourse to a surrogate mother in India. Live-in couples, single parents and homosexuals will also be barred.
“The bill was required as India has emerged as a surrogacy hub for couples and incidents (were) reported on unethical practices," external affairs minister Sushma Swaraj said at a media briefing on decisions taken by the cabinet.
Even legally wedded couples can have a surrogate child only after five years of legal marriage and will require to produce a medical certificate as proof of infertility.
The bill makes it mandatory for surrogate mothers to be married and be a close relative of the couple wanting a child. She should also have given birth to a healthy child before bearing a baby for another couple. A woman can only bear one surrogate child.
“The bill allows surrogacy only for necessity, not for luxury or fashion as we have seen repeatedly," Swaraj said.
“Big celebrities who not only have one but two children, a son and a daughter, even they went ahead with surrogacy," she said without naming anyone.
Violating the law can earn 10 years in jail. Clinics assisting couples wanting a surrogate child will have to maintain medical records for 25 years after the birth of the child.
“The cabinet has approved the bill and it will be introduced in the next session of Parliament," Swaraj said. “Under the bill, a national surrogacy board chaired by the health minister will be created to oversee implementation."
In 2002, the Indian Council of Medical Research (ICMR) released guidelines which made commercial surrogacy legal in India, but without legislative backing.
This led to a surrogacy industry. Infertility clinics mushroomed; surrogate mothers were paid anywhere between ₹ 70,000 and ₹ 3 lakh per pregnancy; everyone, from foreign couples to homosexuals, were eligible for a surrogate baby.
According to a 2012 study by the Confederation of Indian Industry (CII), the size of India’s surrogate motherhood industry was $2 billion a year.
But it was one fraught with risks and uncertainty, not just for the surrogate mothers but also the babies they agreed to bear, as two cases illustrated.
In 2012, an Australian couple reportedly abandoned one of twin babies born to an Indian surrogate mother as they already had a child of the same sex—an incident that came to light two years later.
In 2008, there was a case in which a Japanese couple commissioned a surrogate mother and divorced before the baby was born. The mother eventually refused to accept the child.
Activists seeking to protect the rights of surrogate mothers have been demanding the elimination of middle-men who serve as the contact point between infertility clinics and potential child-bearers.
They have also demanded a database on which professional surrogates would be registered, based on the possession of an Aadhaar unique identity card.
A contract is required to be signed between the commissioning parents and the surrogate mother in which the latter would relinquish all claims to the child and the couple agree to take the baby, no matter what, but this was followed more in theory than in practice.
According to a study published by the Centre for Social Research (CSR), an NGO dealing with women’s issues, in 2014, 88% of surrogate mothers in Delhi and 76% in Mumbai did not know the terms of the contracts.
“We wanted concrete steps to regulate the sector and protect the rights of the surrogates, but this bill is a step in the other extreme direction," said Ranjana Kumari, director of CSR.
She is concerned that a total ban on commercial surrogacy will only push the industry underground and render surrogate mothers even more vulnerable.
Fertility clinics that offered surrogacy services in India have been regulated by ICMR’s guidelines, but these were not legally binding, leading to unscrupulous practices.
According to Swaraj, there are more than 2,000 surrogacy clinics running in India without any registration.
Fertility clinics deny charges of malpractice.
Himanshu Bavishi, president of the Indian Society for Third Party Assisted Reproduction, says all fears associated with commercial surrogacy, such as abandonment and exploitation of surrogate mothers, were “exaggerated and could have very easily been regulated".
Compensation for surrogate motherhood could have been fixed and an eligibility criterion decided, but instead, the government chose to “exhibit a faux concern for women’s rights and prohibit commercial surrogacy entirely", said Bavishi, who runs the Bavishi Fertility Institute, with branches in Ahmedabad, Mumbai, Delhi and Kolkata.
The bill prohibits gay couples from opting for a surrogate baby, but this is a rule that has been in force since 2013. Other rules were also introduced at the time under which couples coming to India for surrogacy had to do so on a medical visa; they were required to provide proof that their home country would offer citizenship to any baby born of a surrogate mother. Twins born to a German couple in 2008 through a surrogate mother were denied citizenship by Germany on grounds that the country did not recognize surrogacy as a means of parenthood.
“The one positive which has been proposed by the bill is to legalize the offspring that will be born. Right now, a child born to a surrogate has to be legally adopted by the parents and it is a grey area," says Parikshit Tank, a Mumbai-based assisted reproductive technology consultant.
According to him, the bill in its current form will bring down surrogacy to 5% of what it is right now. “Carrying a baby for altruistic reasons is very difficult," he said.
The bill is a welcome step as it protects women from repeated surrogate pregnancies for monetary gains, its backers say. And few gains of this booming industry have been passed on to the women who actually carry the child to completion. It is an issue over which women activists have repeatedly raised red flags.
“Our concern now is, how do you regulate a ban? The surrogate women will again be the ones who get affected the most," says Deepa V. of Sama, a New Delhi-based resource group that works with issues of women and health.
The debate on the bill also centred around the decision to not let even single people, both men and women, opt for surrogacy, leaving adoption as their only option. It is largely being seen as an attempt to reinforce traditional ideas of family.
“The fact is that society is changing. You can’t make marriage the only criterion. By doing so, you are ignoring ground reality," said Tank.