Guidelines not enough, enact surrogacy laws

N.B. Sarojini & Aastha Sharma | Hindustan Times | 2008, Aug 7

‘Looking for healthy, good-looking lady from decent family for surrogate mother. Attractive features and education are also desirable. Confidentiality, good facilities and reward assured. Age below 30 and caste Hindu must. Apply box number….”.

Numerous such advertisements find their way into magazines and newspapers each day. Surrogacy is the practice of gestating a child for another couple/man/woman and could involve any of the various Assisted Reproductive Technologies (ARTs) like IVF (in-vitro fertilisation), IUI (Intra-Uterine Insemination) etc. Surrogacy has gathered much attention of late due to the increase in the number of couples opting for surrogacy as well as of the women acting as surrogates. The fertility market is estimated at Rs 25,000 crore today, with reproductive tourism industry growing by leaps and bounds. The past two years have seen a 150 per cent rise in surrogacy cases in India. The Gujarat town of Anand, for example, is a hub of surrogate mothers. Currently in the news is Manji Yamada, the daughter of a Japanese couple, born in Anand on July 25.

India has become the favoured destination for infertile couples from across the globe because of lower cost, less restrictive laws, lack of regulation of ART clinics and availability of surrogate mothers. But surrogacy arrangements are drawn up in a random fashion and can be exploitative, especially since surrogates are mostly from socio-economically weaker sections. It is imperative that the practice be legally regulated to prevent victimisation of both the surrogate and the intended parents.

There is no law governing surrogacy in India. There is only a 126-page document regulating the technologies used. The Indian Council of Medical Research (ICMR) issued National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India in 2005, but the guidelines are legally non-binding. They are hazy on issues like the rights of the surrogate, the minimum age of the surrogate, details about the contracts, informed consent, adoption requirements, etc. The issue of legal parentage has been particularly contentious.

Moreover, many clinics were found to be operating networks of professional surrogates and making profits in recruiting their services. While different factors — ranging from patriarchy, poverty, lack of livelihoods, need for biological child to stigmatisation of infertility — complicate situations on the ground, debates on the issue tend to focus on more elementary questions. Should women be paid for being surrogates? Should the surrogate and the intended parents be allowed to meet? Should the surrogate decide if she wants to give up or keep the baby after the birth? Can the surrogate be the legal parent of the child? What is the age limit and how many times can a woman act as surrogate?

A larger debate and discussion needs to be initiated to understand all the dimensions of this phenomenon.

N.B. Sarojini and Aastha Sharma are with the Sama Resource Group for Women and Health.

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