Surrogacy

Surrogacy in India: Issues & Challenges

Introduction

 Surrogacy is the derived from Latin term which means 'to substitute'. Surrogate mother is a process where a woman is hired to carry and deliver a child for another woman or couple with an agreement that child will be given to them after the birth.

 Generally there are two types of surrogates, gestational surrogates where egg and sperm from intended parents or unknown donors are put together using IVF to create embryo which is then implanted into surrogate mother uterus and Traditional surrogate where the sperm from intended father or unknown donor is implanted into surrogate mother uterus for natural fertilization to take place.

 Surrogacy also referred to as artificial insemination, was allegedly believed to have been used by royal families as a way to manage their male fertility that will keep the family blood line intact for many years.

 What started as an act of love between family members has now turned into commercial business.

Surrogacy in India :-

India created history by being the first country to legalize the commercial surrogacy in 2002. In most of the countries it is still not legal. India has become the preferred destination for foreign couples desiring pregnancy through surrogacy. The relatively low cost to acquire surrogate mother, easy availability of a large pool of surrogates, good medical infrastructure and legal freedom which don't restrict single, gay and unmarried couples from availing this form of ART has taken

India to spiraling heights in the field of surrogacy. The technology which was evolved to give joy of parenthood to infertile couples has now become a business leaving behind traditional values and ethics.


Surrogacy has been subjected to huge debate since India has evolved into a surrogacy haven and exploitation of women. There is no regulatory law except guidelines by Indian Council of Medical Research (ICMR).

Issues and Challenges

 There continues to be much debates and controversies surrounding surrogacy. The process is emotionally and physically stressful for surrogate mother and it is possible to develop emotional attachment with the child she is carrying that can create great amount of suffering on all the sides.

 There are also debates over the infringement of baby's fundamental right to mother's milk. The citizenship of the child born via Indian surrogate mother but whose biological parents are foreign nationals has created much debated and concerns because several countries have banned surrogacy and do not recognize the  children born through assisted means as their citizens.

 The booming baby industry is highly unregulated with lack of adequate legislation and guidelines. Presently the only existing guidelines are non statutory ones issued by ICMR in 2005. Today there exist no stipulations if the contract between the commissioned parents and surrogate mother is violated.

 Ministry of Health and Family Welfare, Government of India has drafted The Assisted Reproductive Technologies (Regulation) Bill. The bill proposes that the surrogate should be of 21 to 35 years of age and she should not have had more than five successful live births in her life, including her own children.

 The woman should be medically examined and tested for sexually transmitted and communicable diseases which might be hazardous for the baby. She is also expected to declare in writing that she has not been the recipient of blood or blood products in the past 6 months.

 Anyone can act as a surrogate in India–known or unknown, related or unrelated. There is a stand among experts to disallow foreign national to have children through surrogates which stems from the concerns over the citizenship of the child.
Surrogacy essentially turns the unique biological ability of a woman's body to reproduce into a commercial business when a monetary transaction is involved. This is complicated further by the lack of strong legal provisions to safeguard the interest of the surrogate mother, the resultant child or the commissioning parents in India.

 Surrogacy is a complex and challenging subject plagued with several controversies and debates over the past decades. On the one hand there is a pain of infertility and craving parenthood whereas on the other side commercialization of reproductive capacity and exploitation of women and
children. However it needs to be reiterated that of viewed in correct perspective, surrogacy is a reproductive treatment which can provide many an instance of happiness, fulfilment and satisfaction to infertile couple.

Recent Developments, issues and way ahead

 Following the serious discussions central government is mulling over to pass a regulatory mechanism in the form of act ending the controversy of surrogacy in India but many issues are yet to be examined.
 The compensation of the surrogate mother is one area where consensus has not
been reached.
 Discrimination for gay and foreign nationals is also hugely protested as government is considering barring them from availing surrogate children. It is protested by NGO’s and activists.
 In earlier versions - in 2008 and 2010 - the bill relied on contract law to establish a
relationship between the commissioning parents and the clinic. In the current  version, the bill states that a professional surrogate will be hired by a government recognized ART Bank and not private fertility clinics, which is the current practice.
 The need of the hour is that instead of putting a cap on who can seek to have children through surrogacy, the rights of the surrogate mother need to be drafted in a way that her interests are better protected.
 This could be ensured by reducing the number of embryo transfers and live births a surrogate mother can undergo and since revenue is the very reason they agree to become surrogate mothers’, the government should fix a certain amount for each surrogate pregnancy such that the compensation from one surrogacy suffices and the women do not have to undergo the process again.
 The issues to be addressed in the regulatory bill should be compensation, informed
consent and health of the women involved.