The issues around surrogacy

The govt has told SC that it does not support ‘commercial surrogacy’, and only Indian married infertile couples would be allowed to have a child by surrogacy.

Written by Shalini Nair | Published: November 2, 2015 12:10 am
Surrogacy, surrogacy in india, Surrogacy ban, Child surrogacy, commercial surrogacy, commercial surrogacy ban, SC surrogacy verdict,  Supreme Court, in-vitro fertilisation, india news, latest news, indian express The Indian government will not allow commercial surrogacy that involves exchange of money for anything apart from paying for the medical expenses for the mother and child.

The background

Surrogacy in India is estimated to be a $ 2.3 billion industry, but surrogate mothers are paid less than a tenth of what they get in the US. The mushrooming of IVF clinics, absence of a regulatory framework, and the availability of poor women willing to rent out their wombs has made India an attractive option for foreigners seeking a surrogate child. Several questions have been raised over the alleged exploitation of surrogate mothers, and over the need to safeguard their, the child’s, as well as the commissioning parents’ rights.

The Supreme Court in the 2008 Manji case held that commercial surrogacy was permissible in India. Baby Manji was commissioned by Japanese parents (through an unknown egg donor and the husband’s sperm) and was born to a surrogate mother in Gujarat. The parents divorced before the baby was born. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognise surrogacy. The baby was ultimately granted a visa, but the case underscored the need for a regulatory framework for surrogacy in India. This was the genesis of the Assisted Reproductive Techniques (Regulation) Bill, 2014.

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Government line

The Indian government will not allow commercial surrogacy that involves exchange of money for anything apart from paying for the medical expenses for the mother and child. Thus, it will allow only ‘altruistic surrogacy’ — which, officials say, could in most cases involve a close blood relative.

In an affidavit to the Supreme Court last week, the government said it would henceforth “prohibit and penalise commercial surrogacy services” so as to protect the “dignity of Indian womanhood”, and to prevent “trafficking in human beings” and the “sale of surrogate child”. Only needy infertile Indian couples would be able to opt for surrogacy of the altruistic kind.

This line also excludes LGBTs, single men or women, couples in live-in relationships, as well as married couples who are proven to be fertile but choose to opt for surrogacy for reasons other than medical. The government’s view is based on the ethical stand that a child should not be the product of a transaction, and that motherhood should not be commodified. Also, the insistence on surrogacy instead of adoption is seen, from the gender-rights perspective, as propagating the patriarchal bloodline. The stand also emanates from health concerns such as the need for the child to be breast-fed for at least six months, or the issues faced by surrogate children born in India once they are taken by commissioning parents to countries that ban surrogacy — or those children who are abandoned due to deformities.

Officials argue that India remains one of the few countries that still allows the practice. There is a complete ban on surrogacy in Germany, Norway, Italy, Sweden and Singapore. Surrogacy, of only the altruistic kind, is allowed in Canada, in certain Australian states, New Zealand, the UK, Greece, Denmark and the Netherlands. In the US, some states allow commercial surrogacy, but in a highly regulated environment. The only European countries where surrogacy is entirely legal are Russia and Ukraine.

ART Bill

A 2013 survey by the Centre for Social Research along with the WCD Ministry showed 68% of surrogate mothers in Delhi and 78% in Mumbai, were housemaids by profession. The report said India had become a rent-a-womb destination and called for a rights-based framework where surrogacy would involve no monetary transactions barring for the medical costs. However it also explicitly said that the law should allow LGBT, single parents and unmarried couples to opt for surrogate children — the Bill, which is expected to be tabled in Parliament soon, has chosen to ignore this recommendation.

The Bill paves the way for the setting up of national and state boards for ART, and makes registration of ART clinics mandatory. Only a healthy, married woman between the ages of 23 and 35, who has a child of her own above the age of three years, is allowed to become a surrogate mother, with the consent of her spouse. The commissioning parents must bear all medical expenses, insurance, etc., and are legally bound to accept the custody of the child/children irrespective of any abnormality that the child/children may have, and whether the parents separate before the child/children are born. Violators face imprisonment of up to five years or a fine of Rs 10 lakh, or both, for the first offence. The Bill prescribes a minimum compensation for the surrogate mother.

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  1. A
    Adalyn Barber
    Dec 5, 2016 at 10:03 am
    I agreed with you on USA or Canada as well, but Europe. Our family faced infertile problem 5 years ago. We were in biotexcom clinic in east European country. There were fixed price which is even smaller than in some Indian clinics. There were friendly staff, and experienced doctors. We visited clinic in order to find surrogate mom. Speaking about the disadvantages, first of all I can`t forget the crowd. Noisy irritating people were all over the building. Everybody was busy and the w atmosphere was quite tense. People realized why they came there and they all were mind on own business. Also I may say that the chambers are not the best, but they are quite comfortable and there`re everything we needed. I liked to live there, even for such a short period. I met many interesting people. Workers of the clinic met us at the airport. They delivered us to the clinic. Some people complained that the road is bad. It is true. But It`s not the clinic`s fault. Well, finally, I want to say that it`s no so luxurious as some of you are probably expect to see, but they do their part really efficiently and are responsible for every their step.
    1. G
      Dec 5, 2016 at 10:02 am
      Couples who can’t naturally conceive due to medical issues, IVF is no longer an option due to issues with Uterus of the woman and couples still want their own DNA then surrogacy is an option. If you met some couples in this boat you would know what I am talking about. Personally I think surrogacy, regulated and controlled should be available here. However since country can’t even regulate IVF. I don’t see it happening. I have major concerns about commercial surrogacy abroad because I think there’s tremendous room for exploitation. This shouldn’t be banned but regulated as this is a hope for many couples who are without a child and does not have enough money to get this service in the USA or Europe. Prices there are not intended for middle cl families. Also there is a thought that nothing stopping most women taking actions to solve that problem and altruistically volunteering to be a surrogate. Except country won’t preform IVF for surrogacy. So, you’d have to travel for that, and then when the baby is born, the woman carrying the baby is still considered the mother by law, meaning the child’s biological parents have to adopt it. As well as we don’t have private adoption here.
      1. M
        Mandy Jones
        Dec 5, 2016 at 10:07 am
        It`s so unpleasant to read negative comments about the clinic. It makes so many people happy and changes their lives. First of all, they should try, to see with their own eyes how the center works. But some people just see something bad from the beginning and then refuse to deal with it. After the smallest misunderstandings they decide to go back home. Moreover lot of comments in the internet how this clinic is bad, how outdated country Ukraine is and so on. Listen, when I came to India there nearly happen an accident on our way to the clinic. And then the doctor refused to consult us, because we were late for about 30 minutes. And, at last, when we were going to leave the clinic, one of the nurses began to scream, that we forgot about boot covers. In Ukraine the situation was rather opposite. The polite driver met us at the airport. In the clinics they offered us everything we needed. We were tired after our flight, so they treated us with coffee and some food. Then saw us off to our housing. So don`t do hasty conclusions. The clinic is really very good.
        1. N
          May 9, 2016 at 7:57 pm
          Government should not interfere in surrogacy matter. I bet the people making laws have children of their own and can't even relate to on a personal level. If a woman has no objection with being gestational mother then the government should stay out of it.
          1. Y
            Yadav Bharat
            Nov 30, 2015 at 3:00 pm
            Commercial surrogacy is a complicated issue from the ethical stand point. Since most the woman for rent out their womb are from socio-economically poor background that implies their poverty and vulnerability has a big role to play. They are not willingly doing so but see it as a quick way out of poverty. Commercial surrogacy so some extent implies harvesting of organs for the benefit of those who can afford to pay. If we allow the profit motive then it is a downfall with no end in sight. What is ethical is altruistic surrogacy for some closely related relative in family. For those who really want a child can go for adoption. India has many orphan children in the country.
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