India is one of the leading centres for surrogate motherhood. Every year, several hundred babies are born in the country and may never know who gave birth to them. Many among us consider the very concept of surrogate motherhood unthinkable for religious reasons among others.

Legal without legislation

Ramu Makwana, 30, mother of three, opted to be a surrogate mother after having three kids of her own. Her husband, Pravinbhai Makwana, is a tailor by profession but has been without work for several months. While Ramu recuperates during the waiting period of nine months at Akanksha Fertility Clinic in Gujarat, her husband looks after home and the children. After a visit back home, Ramu came back to discover that she was carrying twins of which she had miscarried one and chances of the other surviving were very poor. But Pravinbhai interjects and says that the amount of $70 they were paid every month over the nine-month period followed by $8000 after delivery would take care of their basic needs such as building a house and educating their children. But now that she has lost one foetus and the other’s life stands threatened, what will they do? No one knows.

Ramu Makwana’s case was focussed in a 25-minute documentary Womb for Rent in India, a Reproductive Technology Production directed and written by Artyom Vorobey. The film was apparently commissioned by a couple who run and own two Fertility Clinics to promote their operations and justify their functioning as legal and socially benevolent.  But the film remains silent about what the future holds for Ramu Makwana if she loses the baby and what happens to the couple she was carrying the babies for.

When the term ‘surrogacy’ was first bandied about many years ago, not many had a clue about two kinds of surrogacies – altruistic surrogacy and commercial surrogacy. Altruistic surrogacy does not involve exchange in cash or kind for a lady who volunteers to bear a baby for a childless couple. Commercial surrogacy is when a woman by mutual agreement delivers a baby and hands it over to a childless couple for which she is paid usually, an astronomical sum. She may be impregnated only through in vitro fertilization (IVF) according to the current guidelines for Assisted Reproductive Technology (ART) Clinics in India.

The Indian Council of Medical Research (ICMR) developed a draft National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India in 2002 as there were no guidelines or legislation for ART. After extensive public debate, suggestions and feedback from various stakeholders the guidelines were approved, with slight modifications, by the Ministry of Health & Family Welfare, Government of India in 2005.

Sugato Mukherjee in his paper Legal and Ethical Issues of Commercial Surrogacy – an Overview, writes: “Surrogacy was defined by the Warnock Committee as the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth. This implies that the carrying woman acts at the request of another woman who is usually unable to have a child herself. In surrogacy, an embryo is created in vitro, usually using the commissioning couple’s egg and sperm, and is transferred to the surrogate mother’s uterus. Because of involvement of in vitro fertilization, pregnancy can only be achieved by following treatment in a centre licensed under the Human Fertilisation and Embryology Act and regulated by the Human Fertilisation and Embryology Authority (HFEA).”

Surrogacy Bill arrives at the Parliament

The Surrogacy (Regulation) Bill, 2016 was introduced in Lok Sabha on November 21, 2016 and is listed for passage. The Bill regulates altruistic surrogacy and prohibits commercial surrogacy. As of March 8, 2017, the said Bill is still under the consideration of a parliamentary standing committee. Why?

Malavika Ravi, a journalist, commenting on the pros and cons of the Bill states: “The recent proposed draft Surrogacy Regulation Bill 2016, passed by the Health Ministry, was cleared by the Union Cabinet on the 24th of August 2016; and was set to be introduced in the Parliament soon after. Within a span of one week the draft bill received a severe backlash, cited as discriminating and draconian. Although the Health minister stated that the bill was still open to improvement, he also said that clauses relating to the “exploitation of women and abandonment of surrogate children” would not be compromised on.”

A particular case of surrogacy raised sharp and incisive questions around the surrogate baby born to an Indian surrogate mother for a foreign couple. The case was Baby Manji Yamada vs the Union of India & Another on 29th September 2008. In 2007, Dr. Harish Patel who ran the Akanksha Fertility Clinic arranged for a Japanese couple Ikufumi and Yuki Yamada to have a surrogate baby by Pritiben Mehta. Mehta was impregnated using a mix of Yamada’s sperm and an anonymous Indian woman’s egg. Ironically, the couple subsequently filed for divorce. So, who did little Manji belong to? Did she belong to Pritiben Mehta who allowed the fertilized egg to grow in her womb? Did she belong to the anonymous woman who donated her egg? Or, did she belong to the Japanese couple and if she did, after divorce, who would get or take custody of the baby – the husband or the wife? Finally, Baby Manji was handed over to her grandmother Emiko who took her away to Japan with her.

The Surrogacy (Regulation) Bill, 2016 defines surrogacy as a practice where a woman gives birth to a child for an eligible couple and agrees to hand over the child after the birth to them.  The Bill allows altruistic surrogacy which involves a surrogacy arrangement where the monetary reward only involves medical expenses and insurance coverage for the surrogate mother.  Commercial surrogacy is prohibited under the Bill.  The Bill states that any child born out of a surrogacy procedure shall be the biological child of the intending couple and will be entitled to all rights and privileges that are available to a natural child. The surrogate mother will not have any rights on or duties towards this child once the baby is born and the birth certificate will be as the child born to the genetic parents who opted for surrogacy.

However, the loophole is that since altruistic surrogacy is permitted under this Bill, there is no surety about whether commercial surrogacy will hide itself under the garb of altruistic surrogacy and continue to be a commercial proposition even if the law, when passed, disallows it. 

Making commercial surrogacy an underground business

Per ICMR guidelines commercial surrogacy was allowed in 2002. Then what triggered this new bill and the effective ban? One is the Baby Manji case. The other reason is that after commercial surrogacy was legalized, it became a booming industry for foreign surrogacy that led to “fertility tourism” and hence was banned in 2015.

A study report by the Centre of Social Medicine and Community Health, JNU, Sama-Resource Group for Women and Health and King’s College London, in 2012, entitled Reproductive Tourism in India: Actors, Agencies and Contemporary Transnational Networks, maps trends in this unregulated sector. It notes that the “expansion and proliferation of Assisted Reproductive Technologies (ARTs) has been facilitated by economic globalisation. The key features of globalisation, such as crossing boundaries, the increased role of markets in healthcare, the state’s withdrawal from provisioning, are all significant in the context of ARTs. A transnational fertility market is created wherein reproductive tissues like sperm, ova, and uteri are traded like any other commodity to make profit.”

In fact, according to the study, India has emerged as the surrogacy outsourcing capital of the world and it quotes a business newspaper as having suggested that as an integral part of the growing medical tourism industry, the fertility industry is “slated to bring in additional revenue of $1–2 billion by 2012”. (Free Press Journal, February 17, 2013)

The alarming consequences of commercial surrogacy having become a thriving industry is underwritten by conservatives estimates that show that more than 25,000 children are now being born through surrogacy in India every year in an industry worth $2 billion. But as some reports quote, the surrogate mother is reduced to being a baby machine who may most likely have been coerced, physically, emotionally and psychologically into this practice by family pressures often with the husband in the centre. The middlemen usually take a 25% cut on the money that the party gives to the surrogate mother. The medical fraternity also pockets a handsome slice of the ever-growing cake.

This is just the surface of a bottomless iceberg under the sea that threatens to explode because over time, commercial surrogacy has become a thriving industry with a long chain of middlemen who engage in a massive game of arm-twisting, blackmail and extortion both from the couple that has opted for surrogacy and for the woman who has agreed to surrogacy.

This is rampant in a poverty stricken country like India where foreign couples place ‘orders’ for children through surrogate mothers which, besides ethics, raises questions about the legality of the citizenship of the surrogate baby. There are other questions such as whether the health of the surrogate mother is fit enough to carry and deliver the baby at full term as she may be having biological children of her own, whether the baby born of an undernourished and/or malnourished woman will be born healthy enough to bear the pressures of infanthood and childhood and so on. In other words, when and if the Bill becomes a law, it remains to be seen whether by legalising surrogacy in one form, that is – altruistic surrogacy, the government will be encouraging evading law easily by passing off commercial surrogacy as altruistic surrogacy.

Without the necessary infrastructure in place to verify the authenticity of altruistic surrogacy and the technical strategies of distinguishing it from commercial surrogacy there will be no way to find out whether a surrogacy is really altruistic or is disguised as one.

The ultimate aim of the Bill is to prohibit in every possible way, the physical and financial exploitation of the surrogate mother. But there is also another window offered by way of payment of medical expenses and insurance coverage made not to the altruist-surrogate mother but to “the dependents or representative of the surrogate mother” which could be family, in-laws, husband who automatically acquire the power of using that money for ulterior gains not necessarily linked to the mother or her health concerns.

So, a surrogate mother could be exploited by the system by cheating the legal statute if the Bill becomes law when her status is converted from commercial to altruistic, and she could be cheated by her immediate family in general and husband in particular who can exploit her through direct access to the medical expenses and insurance claims!