The rights of infertile fertility tourists, the wombs of their gestational carriers, and the baby born are all under question with the Surrogacy Regulation Bill being proposed, and further amended.
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aby Manji is a child born to an Indian surrogate. Her commissioning parents were a couple from Japan, who filed for divorce shortly before the child was born. The father, still wanting to take care of the child, faced severe legal issues as the Indian law prohibits single men from adoption. Neither the intended mother nor the surrogate mother wanted to take custody of baby Manji. Finally, in Baby Manji Vs. Union of India and Anr, the baby was permitted to leave for Japan after the Japanese Government issued a one-year visa to her on humanitarian grounds. However her grandmother needed to accompany her, because she was temporarily given custody over the baby (Japanese law prohibits adoption by single fathers too). As a result of this case, the debate about surrogacy in India has intensified. In the controversy that followed, several infirmities in the arrangement came to light. The absence of a legal contract between the parties was a fact that many saw as a worrying reminder of the potential for exploitation of native surrogates.
The state of surrogacy in India has been a barrage of mixed information and confusion. Presently, India does not have any enforceable laws in place when it comes to the surrogacy process. Surrogacy was made legal in India in 2002, and with the law came guidelines from the India Council of Medical Research. But these guidelines were truly just that: lax, unenforceable suggestions, without legislative backing.
“This means there is no law to ensure a baby born via surrogacy in fact has parents and there is also no law to ensure commissioning parents have legal rights to a child; a surrogate mother can keep the baby she gives birth to and she may well be within her rights.”
Conflicting Viewpoints
While opponents of surrogacy would like to ban surrogacy completely, some supporters would like countries to declare surrogacy fully legal. Neutrals, who seem to have the upper hand, feel surrogacy is a controversial subject and also acknowledge that the present situation, in which laws are non-existent or poorly enforced, is unfavorable. Most opponents are worried that if it were made illegal, surrogacy altogether would not disappear, but instead would be driven underground, which would cause more harm than good. The prime suggestion is that surrogate mothers should always have the option to withdraw from the contract, up until they voluntarily give up the baby to the intended (commissioning) parents.
Fertility Tourism
The reproductive segment of the Indian medical tourism market is valued at more than $450 million a year. These fertility tourists do not all come from Western countries; India is also a popular destination for medical tourists from Sri Lanka, Pakistan, Bangladesh, Thailand and Singapore. At the moment, there are over 600 fertility clinics established in both rural and urban areas in almost all states of India. It appears that the state of Gujarat is particularly popular, especially among Westerners. It is not only the efforts of the Indian Health Ministry reflected through measures like medical visas, lower interest rates on loans for medical equipment to clinics, lower import duties on medicines etc. causing the increase in number of surrogacy births on the South Asian subcontinent. Many countries around the world prohibit commercial surrogacy contracts and in other countries the enforcement of surrogacy contracts is significantly limited. Due to the restrictiveness of their own countries, desperate couples cross borders into surrogacy-friendly countries, like India, to engage in a surrogacy contract arrangement here.
While commercial surrogacy is also developing in other countries, another contributing factor to the rise in popularity of surrogacy in India is that the patients find it easy to communicate with the English-speaking doctors.
But the strongest incentive for foreigners to travel to India is most likely to be the relatively low costs involved in the process. The fees for surrogates are reported to range from $2,500 to $7,000. The total costs can be anything between $10,000 and $35,000. This is a lot less than what intended parents pay in the United States, where rates fluctuate between $59,000 and $80,000.
“On average, most Indian surrogate mothers are paid in installments over a period of nine months. If they are unable to conceive, they are often not paid at all and sometimes they must forfeit a portion of their fee if they miscarry.”
No Clear Contract- The Proposition
There is no law that ensures a baby born via surrogacy has a nationality — as in the case of the stateless twins born to a German couple via an Indian surrogate. In other words, no party involved has any protected rights. When surrogacy agreements go wrong like this, the Court has had to deal with cases on an ad hoc basis, often turning to surrogacy laws from other countries, including Ukraine, Japan and the United States, for guidance. Not really a sustainable situation for a country with a $400 million surrogacy industry.
In the past, numerous bills have been drafted only to never be presented in the Parliament. However, the Surrogacy (Regulation) Bill, more on which will be discussed in the next part of this series, drafted in 2016 and reported extensively, has seen more active response, reaching the Prime Minister’s office. Two years later, the Bill is in the process of being amended.
If passed, the Surrogacy (Regulation) Bill would effectively ban commercial surrogacy in India. You would be able to become parents via surrogacy only if you’re a heterosexual Indian couple — between 23 to 50 years for the woman, and 26 to 55 years for the man — who have been married for more than five years with proof that at least one of you is infertile, and your surrogate is a close relative between 25 to 35 years who is married and has at least one child of her own. The only money you could offer would be the payment of her medical expenses. If you’ve been married less than five years, or are older or younger than that age range; if you’re single, if you’re foreign, if you’re cohabiting but unmarried, and if you’re gay, you’d be out of luck.
Ostensibly to prevent exploitation of underprivileged women — an admirable goal — the bill is clearly flawed. And unfortunately, the only amendments that appear to be under discussion are provisions for Non-Resident Indians (NRIs) and Overseas Citizen of India (OCI) (as well as people within the now defunct Persons of Indian Origin system) — assuming, of course, these couples are heterosexual, fit the age range, have proof of infertility, have been married for at least five years and have a close female relative who is married with a child and doesn’t mind conceiving, that too, without any kind of recompense.
“The current scenario of surrogacy in India definitely calls for regulation — for the sake of children, birth mothers and commissioning parents. However, the proposed solution seems to be falling short on various accounts, most prominently in terms of equal access to all hopeful parents.”
India is still making its peace with the fact that women can choose to actively participate in decisions related to their reproductive health, including the choice to not conceive, or conceive for a childless couple, or even choice to abort a foetus. The hesitation that comes with any decision related to a woman’s womb is often reflected in bills such as the one proposed. While the intention is noble, we simply can’t ignore the fact that the Bill is heavily laden with stereotypes, which may end up causing more harm than good for the cause.
(This is the first part in a two-part series on surrogacy and its regulation in India.)
