WUNRN
Women's Feature Service
By Devadatt Kamat and Lavanya Regunathan Fischer
A still
photo from the documentary, Made In India, that explores a
complicated clash of families in crisis, reproductive technology, and
choice from a global perspective. (Courtesy: Made In India)
The legal situation in
In
There are references in Indian mythology to surrogacy, most notably in
the legend surrounding Lord Krishna. But it is not commercial surrogacy – the
type and scale of which is practiced in
Of course, there is not much emphasis given to the setting up of norms
to govern this growing industry. The IMA guidelines are more like normative
principles that are required to be followed and not statutory instruments that
invite penalties. At present, in
The Law Commission of India has brought out a report on surrogacy and
the urgent need for regulation entitled, ‘Need for Legislation to Regulate
Assisted Reproductive Technology Clinics as well as Rights and Obligations of
Parties to a Surrogacy’. Unfortunately, this report, too, is now over three
years old and the draft legislation on the issue, termed the ‘The Assisted
Reproductive Technologies (Regulation) Bill 2010’, is still nowhere in sight as
a legally enforceable statute.
The draft Bill itself is not without contentious issues since it is
drafted from the perspective of the commissioning parents. The methods of
payment to the surrogate and the other arrangements it lays down seem to
suggest quite clearly that the surrogate figures low in the list of priorities
in terms of care and protection. This is disturbing considering that surrogacy
raises several ethical considerations including the fact that it leaves poor
women at the mercy of a capricious system. These women often have no other
recourse other than commercial surrogacy arrangements to buy themselves and
their families out of debilitating circumstances. SAMA, a resource group
working in the area of women and health, has raised concerns regarding the
current situation as well as serious problems with the Bill. The number of
pregnancies, the types of procedures and the care of the surrogate are all
matters that have been inadequately addressed, both by the medical system as it
exists today and the Bill.
There is also the issue of race and the ethics to be considered. The
implications of the use of a ‘cheaper’ womb for children to be born from
eggs and sperm donated by persons, usually of Caucasian descent requires to be
considered. The Law Commission Report very succinctly puts down the issue
facing India today when it says that the “non-intervention of law in this
knotty issue will not be proper at a time when law is to act as ardent defender
of human liberty and an instrument of distribution of positive entitlements. At
the same time, prohibition on vague moral grounds without a proper assessment
of social ends and purposes which surrogacy can serve would be irrational.
Active legislative intervention is required to facilitate correct uses of the
new technology i.e., ART, and relinquish the cocooned approach to legalisation
of surrogacy adopted hitherto. The need of the hour is to adopt a
pragmatic approach by legalising altruistic surrogacy
arrangements and prohibit commercial ones.”
In addition, it is pertinent to note that there is hardly the required
encouragement to look at adoption as a viable alternative to surrogacy to
parents willing to consider this as an option to add to their family. Till
recently adoption procedures in
The Supreme Court of India, in the 2008 case of Baby Manji Yamada v/s
Union of India discussed surrogacy and noted that commercial surrogacy is
reaching industrial proportions because of the ready availability of poor
surrogates. It mentioned the 2005 Commissions For Protection of Child Rights
Act but stopped short of demanding that the government take immediate action to
regulate the whole surrogacy industry, and not just address the issue of the
rights of the child once it is born.
But while civil society groups, the media, the courts and the Law
Commission have periodically focused on the various negative aspects of the ART
industry, the apathy of the country’s own legislators makes one wonder what is
required to spur them to address the serious ethical and moral dimensions of
this unregulated enterprise.
There is no need to ban outright all surrogate procedures.