In its present form the Bill may end up denying millions of Indian women the opportunity to take advantage of advancements in medical science.
As the government moves to bring a law to shut down the ‘surrogacy shops’ in India, IVF experts remain divided on the provisions of the draft Bill.
Some welcome it, saying the unregulated industry has become a hub for the exploitation of poor, hapless women; others say regulation is essential — but in its present form the Bill may end up denying millions of Indian women the opportunity to take advantage of advancements in medical science.
The restrictions on who can commission a child through surrogacy — limiting it to just childless married couples who have been legally married for at least five years, but allowing couples with a mentally or physically challenged child or one with a life-threatening disorder, is also a point that has divided the medical fraternity.
“Regulations are important. But surrogate mothers often come from a strata of society where they can neither go to another person’s house to do dishes nor stand in a red light area. For such women, surrogacy is a means to earn a livelihood — even though it is true that compensations have stagnated; it was Rs 2.5 lakh in 2000, and remains the same now,” said Dr Abha Majumdar, Senior Consultant, Obstetrics and Gynaecology, Sir Ganga Ram Hospital.
“I think it should be made commercial, but with very tight regulations. Middlemen should be removed but the surrogate mother must be paid a compensation,” she said.
Dr Majumdar feels it was only fair that the Bill allows a couple with a mentally or physically challenged child to go for surrogacy.
If the Bill becomes law, India will join countries including Switzerland, Sweden, South Africa, Canada, Spain, France and Germany that have banned commercial surrogacy. The decision to ban foreigners from having babies through surrogacy in India has killed off three quarters of the industry, say IVF doctors; what remains caters to really needy Indian women, and the Bill may even jeopardise that.
Dr Kaberi Banerjee, medical director of the Advanced Fertility and Gynaecology Centre, describes commercial surrogacy as a “win win situation” for everybody. “The government seems to be acting on hearsay… It is a win win situation for everybody — the commissioning parents who cannot have a baby by natural means and the surrogate mother who would not have got this amount of money ever in her life. If people were willing to become surrogate mothers for altruism, the commercial option would not have come. Also, when and whether a couple wants to go for surrogacy, first child, second child, disabled child, are individual decisions. The state can’t dictate,” she said.
“I think it is a good Bill. Surrogacy was being misused. It was unfair to poor women — admittedly it was a good income opportunity, maybe they could have looked after their family better. But look at the health hazards. And there is no logic in allowing a couple with a disadvantaged child to go for surrogacy. That child needs care. A second child will complicate matters, and the first one may even be neglected,” said Dr Mangla Telang, Director, Fertility Research and IVF Centre.
Law in India and the UK: What the govt picked up
How UK’s Human Fertilisation and Embryology Act, 1990 and Surrogacy Arrangements Act agree and differ with India’s proposed Surrogacy Bill
On commercial surrogacy
Under both the UK laws and intended Indian law, surrogacy can only be for altruistic reasons. Commercial surrogacy is banned in the UK, and will be in India within 10 months of notification of the Act. In UK, only “reasonable expenses” can be paid, unless otherwise authorised by a court.
On commissioning parents
UK: They must both be over 18; married, civil partners or living together in an enduring family relationship. There are special rules for unmarried/same sex couples. One of the commissioning parents must be biologically linked to the child.
INDIA: Only childless couples who have been married for five years are eligible. Significantly, couples who have a biological child who is mentally or physically challenged also qualify.
On single parents
UK: Single parents are not allowed. There have been cases in court asking for a revision of the law. Clamour resurfaces every few years when a fresh case emerges of a single person seeking custody.
INDIA: Singles or those in a homosexual relationship cannot apply.
On status of surrogate
UK: Surrogate mother of a child born through surrogacy is the legal mother. Her name appears in the birth certificate, and commissioning parents have to later obtain a parental order — which is similar to an adoption order — for custody of the child.
INDIA: Legal parents will be the couple commissioning the surrogacy, and not the surrogate mother. A child born through surrogacy will have the same rights as a biological child.
On blood relatives
UK: Only blood relatives can become surrogate mothers for altruistic purposes.
INDIA: “Close relatives” can become surrogate mothers; will be better defined in the Rules.
For more like NDMIAS