Without Prejudice

WITHOUT PREJUDICE
Regulation of Surrogacy in India
Gayatri Sharma



The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.

The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.

It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.

There are several important differences between the PILSARC version of the Bill and the current ART Bill:

* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]



The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.

The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.

The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.



[1] For a full list of the differences between the two Bills, please contact the PILSARC office.