Since last few years the use of surrogacy has gained currency in not only India but the world over. Yet we must not forget that India along with Russia , Ukraine and certain states of the US are among the few countries that allow commercial surrogacy. It is imperative to understand first what exactly it means . Surrogacy basically refers to a mutually agreed contract in which a woman carries a pregnancy in lieu of money or anything else agreed upon for another couple who want a child but the woman is either infertile or physically incapable of carrying a developed foetus . Let me bring out here that the word surrogate is derived from Latin term “surrogatus” ( substituted ) which basically means “appointed to act in the place of” .

Let me also bring out here that the surrogate mother is the biological mother of the child who conceives it through artificial insemination with the sperm that is taken from the husband . Alternatively , the wife may be fertile but incapable of carrying a growing foetus . In such cases , the child is conceived by in vitro fertilization using the wife’s eggs and her husband’s sperm , and the resulting embryo is thus implanted in the surrogate mother’s uterus and the path to safe delivery of child is cleared .

A survey by the Centre for Social Research ( CSR ) has revealed that about 60 percent of surrogate mothers are kept in “shelter homes” and paid Rs 3-4 lakh per pregnancy . The survey which was conducted in Delhi and Mumbai found that the surrogate mothers usually hail from poor class , are illiterate and in dire need of money due to which they are ready to make any compromises on issue of the amount of money to be paid to them . They are made to sign the surrogacy contract which they are incapable of understanding at all , are not given a copy of the written surrogacy contract which is signed between surrogate mother , the commissioning parents and fertility physicians / doctors and are therefore exploited to the hilt by the doctors / fertility centres as well as their families on most occasions .

Surrogate mothers are often forced to live in secrecy , in closely guarded rented homes , with limited access to their families . In Delhi , such rented homes are mostly concentrated in places like Janakpuri and Tilak Nagar . One such “home” in Mumbai was a cramped one-room facility with five beds and CCTV cameras to monitor the women’s movements . Agents who recruit the surrogate mothers get Rs 7,000-10,000 per candidate . The survey which is backed by the Women and Child Development ministry , has asked the Centre to discourage commercial surrogacy and put in place a legal framework to prevent exploitation . It is no hidden fact now that almost a fourth of the “commissioning parents” who pay Rs 10-40 lakh for a surrogate child, admitted their preference for a son . About 22 percent said they had opted for a sex determination test, and 2 percent said they had the pregnancy medically terminated for “social reasons” – researchers felt this was a euphemism for their preference for a son .

The survey while quoting the ICMR director claimed that approximately 2000 babies are born every year through commercial surrogacy , and cited CII figures that claim surrogacy is a $ 2.3 billion industry in India , because it is largely unregulated and cheaper . Clinics function in tight cliques , with unrelated centres like dental clinics sometimes assisting fertility clinics . CSR director Ranjana Kumari said that , “There are many other issues besides sex selection . There are countries which do not allow surrogacy , what would be the nationality of the child when the intended parents are from that country ? About 40 percent couples opting for surrogacy are foreigners .” She further added that , “There is also a practice of impregnating multiple women with an embryo of the same couple to increase the chances of pregnancy . When one woman becomes pregnant , the others are given pills to terminate the pregnancy without their knowledge. And those women do not get any payment .”

There are even “discounts” offered for multiple surrogates , found researchers , citing the example of a centre that offered a surrogate mother for Rs 13 lakh and two for 17 lakh .While surrogate mothers may be told that they are rendering great service to a childless couple , a doctor told a CSR researcher that they are mere bodies doing something that another woman cannot do – much akin to hiring a maid servant . It is also disturbing to see as the study found that for the surrogate mothers , the money they earn is often spent on household expenses – like paying for an asbestos shed , for the husband to start a new business , or even bribe his way out of a criminal charge

According to the study by the Centre for Social Research , India has emerged as a hub for surrogacy , with Delhi alone reporting more than 2000 cases annually . The figure for Mumbai certainly would not be less . The study says this is multi-billion dollar industry being driven by foreigners , 60 percent of parents who opt for surrogacy are Indians while 40 percent are NRIs and foreigners . The commissioning parents pay anything between Rs 40-45 lakh for a surrogate baby , but the surrogate mothers receive barely Rs 2-3 lakh . It is most unfortunate that there is no law on surrogacy in the country .

It must be highlighted here that with an unregulated surrogacy industry booming in India, it has been observed that in many cases rich couples are preying on domestic helps and housemaids coercing them to step up to the task as per their whims and fancies which they do under financial duress . It is thus found that there is little or no protection for the surrogate mother controlled in the most part by a web of middle-men with medical practitioners opting to turn a Nelson’s eye to all such not-so-straight and controversial transaction . These are part of the conclusions drawn from a study on the surrogacy industry by NGO , Centre for Social Research ( CSR ) .

We cannot be oblivious of the fact that the study which was conducted among 100 surrogate mothers in Delhi and Mumbai says that doctors refer to the transaction as “maid business” . CII has estimated the industry to be over $ 2 billion a year . Ranjana Kumari who is lamented that , “Due to the commercialization of surrogacy , the plight of the surrogate mother and the unborn child is often ignored . There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child .” Releasing a report “Surrogacy Motherhood : ethical or commercial ?” supported by the Ministry of Women and Child Development she said that there is no pay payment structure for surrogate mothers . Around 46 % of the respondents in Delhi , and 44 % in Mumbai said that they received Rs 3 lakh to Rs 3.99 lakh for being a surrogate mother . It is also worth noting here that among those interviewed , 68 % in Delhi and 78 % in Mumbai said that they were employed mostly as domestic helps earning more than Rs 3000 a month .

It is imperative to mention here that the Law Commission in its Report No. 228 in August 2009 dwelt on the need for legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parties to a surrogacy and the relevant recommendations made in this regard are as under : -

1. Surrogacy arrangement will continue to be governed by contract amongst parties , which will contain all the terms requiring consent of surrogate mother to bear child , agreement of her husband and other family members for the same , medical procedures of artificial insemination , reimbursement of all reasonable expenses for carrying child to full term , willingness to hand over the child born to the commissioning parent(s) , etc . But such an arrangement should not be for commercial purposes .

2. A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child , or divorce between the intended parents and subsequent willingness of none to take delivery of the child .

3. A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.

4. One of the intended parents should be a donor as well , because the bond of love and affection with a child primarily emanates from biological relationship . Also , the chances of various kinds of child-abuse , which have been noticed in cases of adoptions , will be reduced . In case the intended parent is single , he or she should be a donor to be able to have a surrogate child . Otherwise , adoption is the way to have a child which is resorted to if biological ( natural ) parents and adoptive parents are different .

5. Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian .

6. The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only .

7. Right to privacy of donor as well as surrogate mother should be protected .

8. Sex-selective surrogacy should be prohibited .

9. Cases of abortions should be governed by the Medical Termination of Pregnancy Act , 1971 only.

The Assisted Reproductive Technologies ( Regulation ) Bill , 2010 is an Act to provide for a national framework for the accreditation , regulation and supervision of assisted reproductive technology clinics , for prevention of misuse of assisted reproductive technology clinics , for prevention of misuse of assisted reproductive technology , for safe and ethical practice of assisted reproductive technology services and for connected matters. It cannot be denied that as of now , anyone can open infertility or assisted reproductive technology ( ART ) clinic and no permission is required to do so . It is therefore pertinent that keeping the public interest in mind the functioning of such clinics needs to be regulated to ensure that the services provided are ethical and that the medical , social and legal rights of all those concerned are protected . This explains the need for this Bill . It is commendable to learn that Section 25 of this Bill expressly bars sex selection . Further , Section 21 imposes duty of the ART clinic to obtain written consent from all parties concerned . Also , under Section 22 of this Bill , it is the duty of the ART clinic to keep accurate records .

It has been reliably learnt that the Directorate General of Health Services has proposed a new law according to which women over 35 and below 21 will not be eligible to act as surrogate mothers in India and this is also contained in Section 34 ( 5 ) of the ART Bill . This is being done not only to make sure that only young and healthy women act as surrogate mother but also to check the unbridled commercialisation of surrogacy that is spreading its tentacles far and deep . The Government has also proposed strict measures in the Assisted Reproductive Technology(Regulation) Bill which basically aims to regulate the booming business of surrogacy to check its blatant misuse .

To prevent the commercialisation of surrogacy , no women will be allowed to act as a surrogate mother for more than three successful births and this includes her own children and a man can donate sperm only 75 times . But we must note here that under the ART Bill , Section 34 ( 5 ) inserts the proviso that “no woman shall act as a surrogate for more than five successful live births in her life , including her own children” and there must be at least a two-year breaks between deliveries . It has also been stipulated that the surrogate baby of a separated or divorced couple will remain their “legitimate child” if both the parties had consented to assisted reproductive technology to have baby . It has also been made clear that the birth certificate will have the names of the generic parent / parents . Further , it has been provided that only Indian citizens can act as surrogate mothers in this country . All clinics and sperm banks will have to be registered . Indian Council of Medical Research ( ICMR ) has a list of 1200 clinics , of which 600 have already started the procedure for registration , other than 150 sperm and ovum banks .

The Bill makes a strong pitch for the segregation of Assisted Reproductive Technologies ( ART ) clinics and gamete banks , pinning many unethical practices on these two being owned and managed by the same individual . Section 34 ( 22 ) stipulates that only Indian citizens shall have a right to act as a surrogate and no ART bank / ART clinics shall receive or send an Indian for surrogacy abroad . Section 36 of the Bill confers right upon the child on reaching the age of 18 to ask for any information , excluding personal identification , relating to the donor or surrogate mother . Section 37 prohibits advertisement relating to pre-natal determination of sex and imposes punishment for a term which may extend to 5 years and with fine which may be specified on its contravention . Section 38 which deals with offences and penalties clearly stipulates that –

1. Any medical geneticist , gynaecologist , registered medical practitioner or any person who owns or operates any assisted reproductive technology clinic , or is employed in such a facility and renders his professional or technical services to such facility , whether on an honorary basis or otherwise , and who contravenes any of the provisions of this act or rules made thereunder , shall be punishable with imprisonment for a term which may extend to three years and / or with fine which may be specified , and on any subsequent conviction , with imprisonment which may extend to five years and / or fine which may be specified .

2. The name of the registered medical practitioner who has been convicted by the court under sub-section 1 of this section shall be reported by the State Board to the respective State Medical council for taking necessary action including the removal of his name from the register or the Council for a period of two years for the first offence and permanently for any subsequent offence .

3. Any person who seeks the aid of assisted reproductive technology or of a medical geneticist , gynaecologist or registered medical practitioner for conducting pre-natal diagnostic techniques on any pregnant woman for purposes other than those specified in clause ( 2 ) of section 4 of the Pre-natal Diagnostic Techniques ( Regulation and Prevention of Misuse ) Act , 1994 ( Act 57 of 1994 ) , shall be punished with imprisonment for a term which may extend to three years and with fine which may be specified , and on any subsequent conviction with imprisonment which may extend to five years and with fine which may be specified .

4. The transfer of a human embryo into a male person or into an animal that is not of the human species shall be an offence under this act and shall be punishable with imprisonment for a term which may extend to three years and with fine which may be specified .

5. The sale of any embryo for research is absolutely prohibited and shall be an offence under this Act punishable by imprisonment for a term which may extend to three years and with fine which may be specified .

6. Use of individual brokers or paid intermediaries to obtain gamete donors or surrogates shall be an offence under this act , punishable by imprisonment for a term which may extend to three years and fine which may be specified .

Many NGOs are critical of the bill as it does not provide protective provisions for surrogate mothers . The Home Ministry has not been in favour of granting visas to foreigners for surrogacy but has now eased the norms allowing even individuals . It is commendable to know that the Directorate General of Health Services , which is an arm of the health ministry , has sent suggestions that surrogacy services should be available only to married infertile couples where at least one person is of Indian origin . Surveys have found foreigners make up 40 percent of the clientele . In a recent survey by an NGO , 22 percent commissioning parents admitted to a sex determination test and 2 percent admitted to having medically terminated an earlier pregnancy for “social reasons” . This must stop immediately and there should be a complete ban on sex determination test which discriminates between boys and girls and kills a female child even before she is born . This also involves changing the mindset of the society . Another grey area that needs to be addressed is what would happen to a child born with some congenital problems . All issues relating to surrogacy have to be resolved properly and correctly because if this is not done , it has the capacity to unleash a lot of malpractices in the society which I have already discussed in length earlier .

The author is an advocate residing at A-82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut – 250001 , UP.
E-mail: [email protected]