Surrogacy: the Executive and Legislative Responses – Free Essay Example_blade_research

While the last chapter examined judicial responses to the issue of surrogacy in India, the present chapter intends to discuss and analyse responses of the executive and the legislature.

Surrogacy activity in India used to occur without any serious government monitoring or regulation. In 2005, the Indian Council of Medical Research (ICMR) issued guidelines on surrogacy.[footnoteRef:1] The ICMR is a body, funded by the Indian government, responsible for the formulation, coordination, and promotion of biomedical research.[footnoteRef:2] Many fertility clinics today follow the ICMR guidelines, but they are neither binding nor robust. [1: Normann Witzleb & Anurag Chawla, Surrogacy in India: Strong Demand, Weak Laws, in Surrogacy, Law And Human Rights 167, 168 (Paula Gerber & Katie O’Byrne eds., 2015)] [2: INDIAN COUNCIL OF MEDICAL RESEARCH, http://www.icmr.nic.in/AboutUs/About_ICMR.html]

ICMR GUIDELINES

A set of guidelines prepared by Indian Council for Medical Research (ICMR) in the year 2005, to protect the right of the surrogate mother, the new born and the parents which made the practice legal, but did not give it legislative backing.

The Code of Practice described in the draft guidelines deals with all the activities which cover the doctors, scientists and patients. Salient features of the draft are as follows:

• Surrogacy arrangement will continue to be governed by a contract amongst parties, which will contain all the terms requiring consent of the surrogate mother to bear the 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.
• A surrogacy arrangement should provide for financial support for the 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.
• A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
• One of the intended parents should be a donor as well, because the bond of love and affection with the 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.
• Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without any need for adoption or even declaration of guardianship.
• The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
• Right to privacy of donor as well as surrogate mother should be protected.
• Sex-selective surrogacy should be prohibited.
• Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.[footnoteRef:3] [3: Accessed on https://icmr.nic.in/sites/default/files/guidelines/ART%20REGULATION%20Draft%20Bill1.pdf at 1:54 AM on Apr 5th 2019.]

Since these guidelines have no legislative backing, they rendered the status of commercial surrogacy as legal without legality. The ICMR guidelines did little to ensure that there was power parity in the contracts between commissioning parents and surrogate mothers, or to protect the rights of surrogate women. They leaned more in the favour of fertility specialists and commissioning parents.

LEGISLATIVE RESPONSES TO SURROGACY IN INDIA

The Indian government proposed legalizing and regulating surrogacy under three separate bills in 2008, 2010, and 2014, but none of them were passed by the Legislature.[footnoteRef:4][footnoteRef:5] In 2015, the Ministry of Home Affairs, in response to an Indian Supreme Court’s order[footnoteRef:6], started denying foreigners visas for surrogacy purposes.[footnoteRef:7] The prohibition on transnational surrogacy significantly reduced demand, but commissioning parents in India continued to hire surrogates[footnoteRef:8]. The Surrogacy (Regulation) Bill of 2016[footnoteRef:9] was the first legislation proposed to prohibit commercial surrogacy completely.[footnoteRef:10] On the other hand, altruistic surrogacy, in which the commissioning parents pay only for costs such as medical expenses and insurance coverage would be allowed under the 2016 Bill.[footnoteRef:11] [4: The Assisted Reproductive Technology (Regulation) Bill (India 2008), http://www.prsindia.org/uploads/media/vikasdoc/docs/1241500084–DraftARTBill.pdf; The Assisted Reproductive

Technology (Regulation) Bill (India 2010), http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%2OBilll.pdf; The Assisted Reproductive Technology(Regulation) Bill (India 2014), www.prsindia.org/uploads/media/draft/Draft%20Assisted%20

Reproductive%20Technology%20(Regulation)%2OBill,%202014.pdf.] [5: Table with comparison added as Annexure] [6: Baby Manji Yamada v. Union of India & ANR (2008) I.N.S.C. 1656 (India)] [7: Circular No. 462, Ministry of Home Affairs, Government of India (Nov. 3, 2015),available at http://mhal.nic.in/pdfs/surrogacy031120l5.pdf;] [8: Kalantry, Sital (2018) ‘Regulating Markets for Gestational Care: Comparative Perspectives on Surrogacy in the United States andIndia,’ Cornell Journal of Law and Public Policy: Vol. 27: Iss. 3, Article 8.

The salient features of the 2016 Bill are:

• According to the bill, only Indian couples who have been married for at least 5 years can opt for surrogacy, provided at least one of them has been proven to have fertility-related issues.
• Only close relatives not necessarily related by blood will be able to offer altruistic surrogacy to the eligible couples.
• The new bill has put a complete ban on commercial surrogacy.
• It also bans unmarried people, live-in couples, and homosexuals from opting for altruistic surrogacy. Now foreigners and even non-resident Indians cannot commission surrogacy.
• Surrogacy regulation board will be set up at central and state level.
• A woman can become a surrogate mother only for altruistic purpose and under no circumstances she will be paid for it, although payment can be made toward medical expenses.
• Commercial surrogacy, abandoning the surrogate child, exploitation of surrogate mother, and selling/ import of human embryo have all been categorized as relations that are punishable by a jail term of at least 10 years and a fine of up to Rs. 10 lakhs.
• The surrogate child will have the same rights as that of a biological child.

STANDING COMMITTEE’S RECOMMENDATIONS

A Standing Committee of the Indian Parliament heavily criticized the 2016 Bill. They argued that commercial surrogacy, at least for Indian commissioning parents, should be regulated and legal.[footnoteRef:12] The report begins stating that the potential for exploitation of surrogacy is linked to the lack of regulatory oversight and legal protection to the surrogate and can be minimized through adequate legislative norm-setting and robust regulatory oversight. Economic opportunities available to surrogates through surrogacy services should not be dismissed in a paternalistic manner; permitting women to provide reproductive labour for free to another person but preventing them from being paid for their reproductive labour is grossly unfair and arbitrary, the report says. [12: Parliament of India, Rajya Sabha, Department-Related Parliamentary Standing Committee on Health and Family Welfare, One Hundred Second Report on The Surrogacy (Regulation) Bill, 2016]

In the altruistic arrangement, the commissioning couple gets a child; and doctors, lawyers and hospitals get paid. However, the surrogate mothers are expected to practice altruism. Therefore, it is far removed from the ground realities, the report suggests. It also adds that altruistic surrogacy only by close relatives will always be because of compulsion and coercion and not because of altruism, with richer relatives exploiting poorer women members of the extended family. The Bill’s emphasis on altruistic surrogacy, therefore, baffled the Committee. The Report mentions that adoption cannot be an alternative to surrogacy. In the name of encouraging adoptions, the Government cannot take away the reproductive rights of couples to have a biologically related child through surrogacy.

The committee has further recommended that in case the surrogate mother dies in the course of surrogate pregnancy, or while giving birth to the surrogate child, additional compensation should be given to the kin of the surrogate mother. The amount of compensation should be fixed by relevant authorities and the compensation so fixed should not be the subject matter of bargain between the commissioning couple and the surrogate mother, another recommendation has reasoned. Maternity Benefits to the surrogate mother as well as the intending mother as both of them are involved in child birth and child rearing respectively, is another constructive suggestion from the committee. Surrogacy should not be allowed as a profession. No woman can become a surrogate more than once, according to the Bill. This has been endorsed by the report, using the rationale that there can be serious health risks involved, as well as exploitation of fertile wombs over a long period of time. This understanding begets analysis, undertaken in a later section of this chapter, and the fourth chapter of this dissertation.

ELIGIBILITY AND RIGHTS OF COMMISSIONING PARENTS

The Committee was of the view that restricting surrogacy to Indian married couples is discriminatory and violative of the right to life, personal liberty, reproductive autonomy and right to equality guaranteed to all persons under the Constitution of India. But the committee is not in favour of extending the option of commissioning surrogacy to foreign nationals, who it says, choose India because the procedure is much cheaper here.

However, the committee disagreed with the Bill’s denial of eligibility to NRIs, PIOs and OCIs cardholders, who are of Indian origin. The committee has recommended that the commissioning couple should provide a specific declaration or a NOC that the child born out of surrogacy would be obtaining the same citizenship rights as possessed by the commissioning couple.

The committee has recommended that all commissioning couples should have the right to go for second chance at surrogacy in case of any abnormality in the previous child irrespective of the fact whether the abnormal child is born through surrogacy or by other means. This particular recommendation belittles the leaps taken in normalising disability and removing the stigma around disabled children.[footnoteRef:13] [13: The response from the disability movement has been highlighted in the fourth chapter of this dissertation. ]

The committee has recommended a comprehensive insurance cover for the surrogate mother covering even the after effects of surrogacy. A period of six years of medical insurance cover along with life insurance of a certain sum of money for the surrogate mother needs to be determined to cover any health complications that may occur long after delivery, the report suggests. Social security insurance for the surrogate child in the event of death of commissioning parents during the process of surrogacy or divorce during the process of surrogacy is another suggestion of the committee.

The committee also wants the Bill’s silence on gamete donation[footnoteRef:14] to be addressed, as in case of one of the commissioning couple being infertile, the gamete will be required to be donated by somebody. Gamete donation will also take the requirements of widows and divorced women into account, the report reasons. [14: Gamete donation is the donation of gametes, either ova or sperm, and may thus refer to: Egg donation. Sperm donation]

The Bill unreasonably discriminates and denies the rights of the live-in partners to surrogacy. A mechanism should be established which can incorporate everyone in the ambit of surrogacy regulatory framework, the report says. Restricting the people to commission surrogacy on the basis of their marital status, would be violation of human rights, and the validity of live in relationships has been affirmed by the Supreme Court[footnoteRef:15]. The Bill’s condition of childlessness as one of the eligibility criteria to commission surrogacy has been criticized. The Bill imposes extended time period of five years of non-conception before commissioning surrogacy- the rationale for this, though unexplained by the Bill seems to be a period of seeking medical assistance for fertility. [15: Khushboo vs Kanniammal & Another, 2010 5 SCC 600]

Couples who are healthy and free from medical complications, need not wait for five years. In the present context of late marriage, further delay of five years would adversely affect the quality of gametes of couples or render the couple’s gametes less viable, the report has pointed out. The Bill disqualifies single parent from eligibility for surrogacy, because single parent needs a donor for oocytes and sperm from a third party which lead to legal complications and custody issues that may arise at a later stage.

The committee has observed that by prohibiting widows and divorced women, the Bill has closed its eyes to ground reality, as the social status of a woman is judged by her reproductive life and there is a lot of pressure on her for child bearing. The committee has, therefore, recommended that Bill should broad base its eligibility criteria in this regard and widen the ambit of persons who can avail surrogacy services by including live-in couples, and divorced women/widows.

The Bill also disallows homosexual couples from using surrogacy to conceive, and the committee has addressed this by stating it is also violative of basic human rights. The committee has dis-favoured the Bill’s requirement for certificate of infertility from an appropriate authority. Instead, medical reports and prescription of the couple certifying repeated failures in conception or inability to carry the baby to full term should be allowed as a proof for their decision to commission surrogacy, it has suggested. The bill’s lack of clarity about offences like human trafficking, abduction or inter-country movement of surrogate mother or child for surrogacy purposes and failure to prohibit sex selective surrogacy has come in for criticism by the committee.

RESPONSES TO THE 2016 BILL AND THE STANDING COMMITTEE RECOMMENDATIONS

The Bill denies the rights of live-in partners, widows, divorced women, homosexuals to surrogacy, as well as the reproductive rights of commercial surrogates to assist them in the pursuit of having a child. This is not just a gross violation of human rights, but also a thinly veiled attempt at furthering a moralistic view of an ‘Indian Family’, that constitutes a married mother, father and a child. The Bill also assumes that the only reason one opts for surrogacy is infertility. This understanding goes against the principle laid down in B.K. Parthasarathi v Government of A.P.[footnoteRef:16], where a woman’s right to reproductive autonomy was laid out, under which a fertile woman can refuse to reproduce. The Bill, in its debarring fertile married women from contracting a surrogate, violates this, and reinforces the notion that all fertile, married women must want to bear a child. The 5 year waiting period as suggested by the Bill is also violative of the commissioning parents’ privacy, as well as reproductive freedom. [16: 2000 (1) ALD 199]

There is an ongoing debate about whether or not surrogacy is the sale of the child, but often technical arguments are made on both sides of the debate.[footnoteRef:17] When prohibitions on the sale of children were enacted, they did not account for surrogacy so arguing within the existing legal framework may not be useful, however it is imperative to review the existing framework and address new practices and concepts such as surrogacy within it.[footnoteRef:18] Jurisdictions who want to legalize surrogacy could create an exception for surrogacy under existing laws that otherwise prohibit the sale of children.[footnoteRef:19] [17: John Tobin, To Prohibit or Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?, 63 INT’L COMP. L.Q. 317, 318 (2014)] [18: David M. Smolin, Surrogacy as the Sale of Children: Applying Lessons Learned from Adoption to the Regulation of the Surrogacy Industry’s Global Marketing of Children, 43 PpP. L. REv. 265, 322-24 (2016)] [19: Yasmine Ergas, Babies Without Borders: Human Rights, Human Dignity and the Regulation of International Commercial Surrogacy, 27 EMORY INT’L L. Rev. 117, 154 (2013)]

While the recommendations of the Standing Committee take into account the rights of the surrogate mother, and propose a well thought out balancing act between the competing sets of rights of commissioning parents and surrogates, it still views commercial surrogacy as inherently exploitative, and unworthy of being real, respectable work.

CONCLUSION

The Surrogacy (Regulation) Bill was passed by the Lok Sabha on December 19th 2018, without including any of the suggestions from the Parliamentary Committee Report. Both, the Parliamentary Standing Committee Report as well as the 2016 Bill are of the paternalistic view that surrogacy is inherently exploitative, if there is any commercial interest involved. This assumption has often also been seen in arguments against legalizing sex work, since it is believed to ‘exploit’ women. The existing view is that women cannot choose to remain in sex work just as women cannot choose to sell their womb for a price.[footnoteRef:20] This de-recognizes women’s exercise of agency with regard to their own bodies. It is an extremely important part of the patriarchal agenda to deny women agency over their sexual as well as reproductive labour, in order to control women more comprehensively[footnoteRef:21]. [20: Pillai, Supriya, et al. “Embracing the Rights of People in Prostitution and Sex Workers, to Address HIV and AIDS Effectively.” Gender and Development, vol. 16, no. 2, 2008, pp. 313–326. JSTOR, www.jstor.org/stable/20461276.] [21: Maria Patricia Fernandez Kelly. “The Sexual Division of Labor, Development, and Women’s Status.” Current Anthropology, vol. 22, no. 4, 1981, pp. 414–419. JSTOR, www.jstor.org/stable/2742235.]

The Executive response to commercial surrogacy, unlike the Legislative response is not one that strives to draw a hard line between approval and rejection. In the interest of pragmatism, it seeks to instead achieve the same objective through regulation. While the 2016 Bill proposes an effective prohibition on commercial surrogacy, the Parliamentary Standing Committee in its report provides a more choice based, and equitable analysis of the surrogacy boom in India. It understands and reiterates the need for robust contracts, and discusses the possibility of the industry being pushed underground, with no regulation and thus leading to further ‘exploitation’ of women, that the Bill primarily seeks to address through the ban on commercial surrogacy.

The overseeing mechanism of Surrogacy Boards, as proposed by the Bill, can actually be used to the benefit of surrogate mothers in commercial agreements. Much like a rent agreement or a sale deed has to be registered with the Registrar’s office, it could be feasible to think of these as an authority where the surrogacy agreements / contracts can be compulsorily registered, to ensure that the contents of such agreements are scrutinized prior to registration. This could also help ascertain that informed consent is obtained from the surrogate mother, and the contract is fair and balanced in terms of negotiating power.

A sharper critique of the Bill and Report’s approach to commercial surrogacy is attempted in the next chapter of this dissertation.