Is banning commercial , overseas surrogacy answer to controlling exploitation of surrogate mothers – Issues & Concerns

Prajavaniepaper Kannada News Paper Bangalore,Sonali Kusum, Pg. no. 6 , 29th June 2015 ,

It is estimated that 15 percent of couples around the world are infertile and there are 20 -30 million infertile couples in India” as of year 2014. In the light of this statistics, World health organization has   recognized infertility as one of the highly prevalent medical problems worldwide. This increasing rate of the infertility worldwide is one of the prime reason necessitating ART Assisted reproductive technology including surrogacy is inevitable and rampant globally, nationally.

Surrogacy is a form of ART including in vitro fertilization where in fertilization takes place outside body in test tube,  involves use of assisted medium or third parties as surrogate mother or gestational carrier in whom the fertilized egg is implanted for gestation and child bearing  , where in this process the gamete may belong to either of or both the couples or may be procured from donors, Surrogacy is used as the most effective ART technology as recourse to or circumvent infertility  ,  thereby facilitating to procreation, family formation for such infertile couples along with genetic connection between with either or both the couple and the surrogate child, It may be stated that in many medical conditions surrogacy is the only option to for many infertile couples to have a child genetically related or biologically related to the couple.

Availing or accessing Surrogacy  emerges from  the most fundamental universally established  human and legal right namely right to health , right to family formation which are core constituent of  right to life of an individual guaranteed  to all including foreign nationals under article 21 of constitution in view of established supreme court judgements , human rights conventions, Thus Right to access modern scientific technology for medical treatment for improving  reproductive health, towards attainment of right to family formation is not only crucial but also meaningful part of right to life of an individual in the landmark judicial precedents.

It is important to note that Right to access modern scientific technology for human welfare is itself recognized as  human right under ICESCR 1966, Right to health is recognized as human right under International human right convention ICPD 1994, ICESCR1966 ,

Termination of such cardinal right as right to life , access to health technology, means to family formation or procreation to foreigners with the arbitrary abrupt stay of Home Ministry Guidelines 2012,  following the Government proposal to ban overseas , commercial surrogacy appears prima facie  unfair  , unjust discriminatory to foreigners  without prior consultation , prior notification with the stakeholders this amount to breach of doctrine of “legitimate expectation” , this view is supported  by Mumbai High court November 2015 in a recent case of a foreign national who had commissioned surrogacy in India and at present they are caught in legal issues  by this government proposition.

This abrupt termination of Home ministry guidelines has brought forth a host of unresolved issues , a number of foreign nationals are caught up in legal troubles.

as the government has failed to provide an alternative recourse for various such couples as well as surrogate mothers ,egg donors who are placed at different stages of surrogate pregnancy  undergoing IVF Treatment as a preparation to achieving birth of surrogate child after having commissioned surrogacy in India. The status of such individuals including intending mother, surrogate mother, egg donors are unaddressed , remains questionable !  These women are exposed to a range of immediate health risk arising out of sudden cancellation of the medical process after having commenced with such treatment and medication half way through!

Banning commercial surrogacy and replacing with altruistic surrogacy is fraught with further legal complexities , Altruistic surrogacy as opposed to commercial surrogacy , is where the surrogate mothers are not paid monetary compensation for rendering her gestational services by the couple.

Altruistic surrogacy is not workable or not pragmatic in India considering the particular socio economic context of India where there is large scale illiteracy , poverty , inability to find gainful employment among women. under such circumstances its highly impractical to assume that these poor woman will be willing to come forward to undergo surrogate pregnancy , face the health risks including maternal mortality , to bear children out of  sheer compassion , charitable interest for rich couples who will avail the services of surrogate mother and pay the clinics but there would be no monetary compensation to surrogate mother for reinstating the loss of health, pain discomfort!  Thus altruistic surrogacy under Indian conditions is unfair and inequitable to surrogate mother as she is made more vulnerable.

Another issue with the ban on there is a possibility of the rise of thriving black market or underground surrogacy industry which would be disguised or secretive operation of ART Centres away from Government control, supervision leading to further exploitation of surrogate mother, couples.

There is a dire need to identify the real cause of exploitation which is clearly / evidently the decade long legal void or absence of an effective binding legislation on surrogacy which provides sufficient health safeguards including during the gestation as well as post delivery health care , psychological health counselling , necessary social security for her and her children, including providence for any contingencies, other reasons for exploitation of surrogate are the lack of Government appointed regulatory monitoring body overseeing the  conduct of infertility clinics/ ART centres, no mandatory government registration or accreditation or licensing for infertility clinics, Misuse unethical practice of ART Technology , by ART Clinics, ART Banks leading to administration of high dosages of drugs, lack of requisite infrastructure at hospital to deal with life threatening situation in surrogate or any unforeseen health condition, lack of medical experts resulting in death, disability or reproductive health exploitation of surrogate mother, egg donors.


Another drawback is the lack of accurate authentic record keeping with Government on the number of women registering as surrogate mother, there is no record on death of surrogate mother , egg donor  , no record on the number of Surrogate children born in India to national intending couples and to foreigners who are travelling to foreign nations with foreigner intending couples annually either at national ,state level , Besides , there is no record on the number of registered and the unregistered ART Clinics , ART Banks respectively functioning at present in India,  in the absence of such significant records, statistics, there is no legitimate basis to establish that surrogacy is exploitative of poor women or empowering women with monetary compensation received for being surrogate, or otherwise and in the lack of records , it is also difficult to state that foreigners / overs seas surrogacy is responsible for exploitation of surrogate mothers in India

At present ART Bill 2014 is introduced which has made attempt to provide for reproductive health safeguards for surrogate mother yet the Bill has certain chief limitations which has been subject of critic by medical doctors , lawyers as well as surrogate mothers who have voiced their concerns against it.

The proposed approach of Government towards surrogacy is also subject of discourse surrounding adoption.  It is assumed that ban on surrogacy is always compared with its inverse impact on adoption. It must be noted that presently ,  laws on adoption including overseas adoption are made much flexible, relaxed or hassle free as compared to surrogacy with the recent CARA Guidelines 2014- 2015, allowing even single individuals as well as married couples to adopt with reduced procedural formalities . Therefore adoption must be encouraged as a socially benevolent choice for those who are voluntary , express willingness to adopt , but the adoption may not forced on the infertile alone as the only option for family formation.

At the outset, it may be  rightfully stated that the choice ,or decision making on family  formation is a prime subject matter of privacy, personal liberty of an individual and India as a welfare state with the constitutional mandate under Directive principles of state policy [DPSP ] has a duty to improve public health , welfare of people. Accordingly / in accordance with this, Government  must seek to give effect to the same and bring laws which ensure safe ethical desirable practice of technology , build such regulatory mechanism with adequate safeguards, protection of rights for all the stakeholders so that there is no unjust benefit gained by one party at the cost of other party by subjecting her to unfair treatment or exploitation of the other, a law on these lines is acceptable.



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