Tusshar Kapoor was all over the news last month for his decision to become a single father through Assisted Reproductive Technology (ART), a first in Bollywood. While some hailed him for his bold move, his decision also rekindled the age- old debate on commercial surrogacy in India.

Commercial surrogacy is the practice whereby a woman is paid compensation (apart from the medical and other reasonable expenses) to carry and deliver a child for another individual or couple. It is of two types- traditional, where the surrogate mother is artificially inseminated with the intended father’s sperm (using practices such as IVF, IUI or home insemination), the child being genetically linked to the intended father and the surrogate mother, and gestational, where the intended mother’s egg and the intended father’s sperm are used to create a donor embryo that is implanted into the surrogate mother (with the child heritably linked to the intended parents).

India is one of the few countries that allows the practice of commercial surrogacy, even being home to a multi- billion dollar surrogacy industry; while some other countries like France, Germany, Norway and Italy have placed a complete ban on it for the various ethical and moral concerns that it throws up.

This blog post will look at some of these ethical and moral concerns associated with the practice of commercial surrogacy. It will also look at commercial surrogacy as regards India, including the main provisions of the Assisted Reproductive Technology (Regulation) Bill, 2014, that disallows foreign nationals from seeking surrogacy in India.

Moral and ethical concerns

The main objection to the practice of commercial surrogacy is that it commodifies a woman’s body, much the same way as prostitution does (the reason why the practice is sometimes also referred to as “womb prostitution”). Women are used essentially as breeders, putting their wombs up for rent to the highest bidders. It diverts attention away from women’s foremost status as human beings to their status as a commodity, providing an essential service; thereby treating women not as ends in themselves, but as a means to an end.

Not surprisingly then, the practice finds itself under regular attack from feminists, particularly the feminist theologians, who use the Greek concept of unity and self, the idea that a person’s body cannot be used without their use as a person, to condemn it.

Another issue that crops up is the exploitation of women. Surrogacy leads to the oppression of poor women, who often have no real say in the renting out of their wombs, pressured by their families or middlemen who have their eye on the final prize, which in some cases can go up as high as $150,000.

Then there is the problem of middlemen and commercial agencies that often keep most of the profit for themselves, with only a fraction of the amount given as compensation reaching the actual beneficiary, the surrogate mother. This is most especially true in countries such as India and Thailand, where surrogacy though legal, is not supported with properly framed laws for the protection of the surrogate mothers.

Other problems include the lack of provisions for insurance and post- pregnancy medical and psychiatric support for surrogate mothers as well as the contingency of unfavorable pregnancy, in which case the surrogate mother often ends up being unpaid.

Commercial surrogacy ends up treating not just women, but even children as products, to be bought and sold in the marketplace. Children are then seen as objects of contracts, subjected to sex- selection and even abandonment in case of disability or a simple change of mind. A case in point here is that of Thailand’s baby Gammy, one of the twins born to a surrogate mother in Thailand, at the behest of an Australian couple, the Farnells. It was alleged that the Farnells rejected Gammy due to his disability (he suffered from Down’s syndrome) and returned to Australia with only Pipah, who was perfectly healthy, leaving Gammy with his surrogate mother. Though a judge later acquitted the Farnells of any wrongdoing, the case attracted a lot of international furor at the time, leaving some to question the practice of commercial surrogacy itself.

Then there is also the concern that commercial surrogacy is nothing more than the trafficking of children. It would be pertinent to look at the recent case of a French woman, who cheated two gay couples by contracting to act as a surrogate for them and informing them that the children had died, when in reality she had sold off the children.

Similarly, the lure of the big bucks earned by this practice, has also led to the trafficking of women, who are then forced into surrogacy against their will.

Women engaging in surrogacy have a number of health risks, some of which are Ovarian Hyper Stimulation Syndrome (OHSS), ovarian torsion, ovarian cysts, chronic pelvic pain, premature menopause and loss of fertility. Children born of this process are also prone to a higher chance of preterm birth, stillbirth, low birth weight, fetal abnormalities and higher blood pressure.

Some other issues that crop up relate to whether couples who are perfectly capable of conceiving a child on their own should be allowed to take recourse to the practice of commercial surrogacy, as a means of outsourcing the most painful parts of parenthood, while still enjoying its advantages (this practice has been most common among celebrities, some of the most notable of which are Shahrukh Khan and Aamir Khan). A second issue relates to the psychological effect that the practice might have on the child, including the possibility of an identity crisis and the desire to meet his/ her gestational mother.

The Law in India

Surrogacy has been legal in India since 2002, with some estimates valuing the industry at around $400 million a year, making India one of the world capitals of surrogacy. The destination has been most popular among foreigners because of the availability of a wide pool of labor, at relatively low prices.

The practice was initially governed by the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India, 2005 made by the Indian Council for Medical Research (ICMR). These guidelines, made after extensive public debate with stakeholders, allowed for the use of assisted reproductive technology even by single and unmarried individuals, with the child born having legal rights with the man or woman concerned. However, the absence of a binding, codified law on the subject, detailing the rights of the surrogate mother as well as the parents, gave rise to a lot of problems.

A notable case is that of the Japanese Baby Manji Yamada, who was born of a surrogate mother, with the embryo having been created from the commissioning father Ikufumi Yamada’s sperm and an egg harvested from an anonymous Indian woman. During the pregnancy, the commissioning parents divorced and the mother then refused to accept the baby. It turned out that none of the three mothers, the intended, the genetic as well as the gestational were responsible for the baby. The father tried to secure documents for the travel of the baby to Japan from both the Indian and Japanese governments, however, was unsuccessful. The Japanese government refused her a Japanese passport on the ground of her birth mother being an Indian (Japanese Civil Law takes the mother giving birth to be the real mother and does not recognize surrogacy). The Indian government on the other hand, refused because the absence of laws on surrogacy in India meant that Ikufumi would have to adopt the baby, while an 1890’s Act prevented him from doing so. The requirement of a birth certificate also could not be fulfilled since the status of the mother was uncertain. The father was hence, caught between two legal systems, both ill equipped to deal with the issue of surrogacy.

Thereafter the draft Assisted Reproductive Technology (Regulation) Bill, 2008 (ART Bill 2008), the draft Assisted Reproductive Technology (Regulation) Bill, 2010 (ART Bill 2010) and the draft ART Bill 2013 were proposed, which still allowed for surrogacy to be made available to everyone including single persons and foreign couples.

The surrogacy industry however, suffered a blow in the form of the revised Assisted Reproductive Technology (Regulation) Bill, 2014 that proposed to restrict surrogacy to infertile Indian married couples.

The Assisted Reproductive Technology (Regulation) Bill, 2014:

The main features of this Bill as regards commercial surrogacy are as follows:

  • Foreigners will not be allowed to seek surrogacy in India and it will be permissible only to Overseas Citizens of India (OCI’s), People of Indian Origin (PIO’s), Non- Resident Indians (NRI’s) and foreigners married to Indian citizens, in addition to Indian citizens.

This provision of the Bill has received a lot of flak for the simple reason that the majority of the people seeking surrogacy in India are foreign nationals and any attempt to bar them would greatly affect the profits of the surrogacy industry. Another argument is that if the main purpose of the Bill is to prevent the exploitation of the surrogates, then banning only a particular group seems arbitrary; the exploitation happens due to the lucrative monetary compensation, which remains the same irrespective of who is the ultimate beneficiary. A Sudanese national had even filed a case in the Punjab and Haryana High Court (Shihabeldin v Union of India & Ors.), contending that this provision was discriminatory against foreign nationals; the High Court however, dismissed the petition since the law on this subject was not finalized and was merely at the deliberation stage.

  • The intended couple would have to produce a duly notarized agreement with the prospective Indian surrogate mother in addition to an undertaking that they would take care of the child through the pregnancy.
  • For foreigners married to Indian citizens, they would have to prove that they have been married for no less than two years, as well as submit a certificate attested by the appropriate government authority of that country, submitting the woman is unable to conceive. The child born to such a couple would not be an Indian citizen and would be given Overseas Citizenship of India under the Citizenship Act of 1955.
  • Also, women acting, as surrogates would be under a duty to not engage in any act that may harm the fetus or the baby, including unprotected sex, until the child is safely handed over to the commissioning parents.
  • The Act prescribes for the setting up of a National Board for Regulation of Surrogacy that would regulate the policies relating to surrogacy in India. It has been made mandatory for assisted reproductive technology clinics to register themselves with the board.
  • The Bill does not allow an Indian woman to act as a surrogate more than once in her lifetime and mandates that in case the surrogate is a married woman, she will have to take the consent of her husband.

This provision has been deemed to be impractical since according to a Mumbai based infertility specialist, it would be completely normal for a woman who has had two normal deliveries (her own children), to deliver normally twice as a surrogate, and then once by C- Section.

Surrogacy in India continues to suffer from a void in terms of a codified law that is in keeping with technological advancements and which adopts a solution based approach to the issue of surrogacy, reconciling the rights of the surrogate, the child as well as the parents. Such a law would need to be binding with strict enforcement mechanisms, while at the same time possessing the requisite mechanism for judging the suitability of proposed surrogate parents, rather than debarring an entire section (namely the unmarried and foreigners). The existing and rigorous mechanism governing inter- country adoptions, namely the Central Adoption Resource Agency (CARA), proposed to be a statutory body can be used as an inspiration in this regard.

By: Shubhi Goyal, NALSAR University of Law