Commercial surrogacy has been legal in India since 2002, a practice that has been fully taken advantage of by many stars in the Hindi film industry. Last month, producer and actor Karan Johar became the father of twins – a boy and a girl – through a surrogate mother. While the name of the mother remains undisclosed in BMC records, Johar is listed as the father.
India has been a favourite country for those wanting a surrogate child. The cheap availability of the service enables an overuse of the practice with commissioning parents arriving from various other countries as well. In 2002, the Indian Council of Medical Research (ICMR) laid out guidelines for surrogacy, which made the practice legal, but did not give it legislative backing. This led to a booming surrogacy industry which had lax laws and no enforcements. A study conducted in July 2012, backed by the UN, put the surrogacy business at more than $400 million with more than 3000 fertility clinics all over the country.
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The ICMR, even without legislative backing, provided pro-surrogacy guidelines that protected, to an extent, the surrogate mother and the commissioning parents. It prohibited sex-selective surrogacy, required the birth certificate to only have the names of commissioning parents, required one of the commissioning parents to be a donor, required a life insurance cover for the surrogate mother and ensured right to privacy of the mother and the donor, among other things.
However, the necessity of legal protection was enforced through the case of Baby Manji vs Union of India. A Japanese couple commissioned a surrogate mother in India but they ended in a divorce. The single male parent wasn’t granted custody of the child and the mother refused to accept it. Japan gave the child humanitarian visa and allowed the grandmother to take the child on behalf of her son, given his genetic relation with the baby. During the case, however, the Supreme Court recognised that the parent of a surrogate child may be a male and recognised surrogacy as a positive practice.
A draft ART (Assisted Reproductive Technology) Bill was formulated in 2010, but was never passed as a law. The bill lays down further conditions and procedures for surrogacy and notes that there are no regulations as to how many times a birth mother may be allowed to reproduce. The bill also enabled single parents, male or female, to have a child through surrogacy. Here, the women had to prove they were infertile and couldn’t give birth while the men had no such condition. A research undertaken by Centre for Social Research (CSR) points out that the bill did not protect the rights of a surrogate mother. The bill also did not allow single foreign nationals and homosesexual couples to be commissioning parents. It defines “couple”, as “two persons living together and having a sexual relationship that is legal in India.”
The bill, however, has no rules as to how much compensation a surrogate mother can get and should get. Over exploitation often results in declining health of mothers who become baby making machines. According to the CSR report, surrogate mothers are paid $4000-$5000 for bearing the child. Clinics, however, charge the adoptive parents double the money. The reason driving the mothers to surrogacy is usually poverty and lack of education, which further ensures their inability to challenge the exploitation.
The research states that clinics do not provide the mother with a copy of the contract that is signed by the adoptive parents. In order to escape stigma (that they’re indulging in this practice), pregnant women often stayed in shelter homes that provided them with lesser security and assistance than required. While they should be giving birth to only two children – having at least one own child from a previous birth – surrogate mothers end up being exploited for a much larger number, more often than not, giving birth one after the other.
In light of this, the Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha in November. The cabinet approved bill, however, has not been passed yet. The number one proposition of the bill is to completely abolish commercial surrogacy. Defining commercial surrogacy as “surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage”, this provision is aimed at cracking down on the inside businesses of surrogacy that encourage exploitation.
The bill only allows altruistic surrogacy, where the surrogate mother is a close relative of the commissioning parents. The couple also has to prove their infertility.
Under the bill, all surrogacy clinics will have to be registered, the surrogate mother cannot be paid directly and there will be national and state surrogacy boards which will be the regulating authorities for the practice. Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, selling/ import of human embryo have been put down as violations, punishable by law. In addition, all registered clinics will have to maintain records of surrogacy for 25 years.
The most jarring provision of the law, also present in the ART Bill, is the prohibition of single parents, homosexuals, live-in couples from becoming commissioning parents. The bill also disallows childless or unmarried women to be surrogate mothers.
While the ART bill recognised commercial surrogacy and provided for its regulation, the Surrogacy (Regulation) Bill takes into account the extensive exploitation that is a product of commercial surrogacy; but it also abides by archaic ideas of who can be parents and who cannot. The bill faced backlash from not just the opposition but also women who are currently involved in commercial surrogacy – these would be women who go from having a stable source of income to nothing at all.