Legalization of Surrogacy & legal Issues ante reproductive health of surrogate mothers – Brief Analysis of ART Bill

Pub. Info. Prajawani Kannada News Paper Bangalore, Sonali Kusum,11/04/2015,  ಸೋನಾಲಿ ಕುಸುಮ್,  ಬಾಡಿಗೆ ತಾಯ್ತನವೂ ಸಂಬಂಧಗಳ ಸಿಕ್ಕುಗಳೂ , ಪೋಷಕತ್ವ ಸೇರಿದಂತೆ ಸಾಮಾಜಿಕ ಸಂಸ್ಥೆಗಳು, ನೈತಿಕತೆ, ಧಾರ್ಮಿಕ ಸೂತ್ರಗಳಲ್ಲೂ ಪರಿವರ್ತನೆಯ ಗಾಳಿ

Legalization of surrogate motherhood in India

Surrogacy as an infertility treatment has been  permitted and practiced in India since year 2002 as a part of Reproductive Tourism programme by the Indian Ministry of Tourism Policy in order to boost foreign exchange.  This was followed with the formulation of first ever National Guidelines for Accreditation, Supervision & Regulation of ART Clinics by ICMR in the year 2005  providing for standard of conduct to be complied by the infertility clinics on surrogacy in India. Commercial surrogacy is formally legalized by the supreme court in the case of Baby Manji Yamada v. Union of India, (AIR 2009 SC 84; (2008) 13 SCC 518) and the apex court described as “Commercial surrogacy  is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well off infertile couples who can afford the cost in order to complete their dream of being parents”. The court directed the legislature for the enactment of statutory law on the same which led to formulation of Assisted Reproductive Technologies (ART) Bill by ICMR, Ministry of Health & Family Welfare Government of India in the year 2008. This Bill was revised in the year 2010 with necessary modifications. However this Bill is in pendency and awaiting enactment.

With the legalization , there has been large scale practice of commercial as well as cross border surrogacy in India allowing the foreign nationals to commission surrogacy by availing the gestational services of the surrogate mother for monetary returns. It is estimated that The Fertility or reproductive tourism industry in India generates approximately US$500-million with around three thousand surrogacy clinics in India. Accordingly India is called “the world capital of surrogacy”, “the most favoured destination and global leader in the International surrogacy market”.  Thus there is booming business of surrogacy in India yet there is binding law to regulate and the same this pervades scope for misuse of the technology for commercial gains.

Brief critical analysis of ART BILL & Reproductive Health Exploitation-

The ART Bill from its very first draft of the 2008 has been subject to serious criticism for subjecting surrogate mothers to reproductive or maternal health exploitation and denial of host of interlinked rights under the provisions of the Bill. The Bill makes the surrogate mother subservient  to the larger interest of couples, clinics and the surrogate child. The surrogate mother is treated as mere gestational carrier with minimum safeguards and subject to maximum risks and disadvantages thus left vulnerable to exploitation.

Analysis of ART Bill – Is the Bill exploitative of the surrogate mothers ?

Risks of In vitro fertilization (IVF)  Technique in Surrogacy & Reactions to Hormonal Drugs:

The Bill provides for use of vitro fertilization (IVF) procedure in surrogacy for implantation of embryo in the surrogate mother. It is established through scientific research that the IVF technique carries both long term and short term health risks as pelvic  disorder varicose veins, eclampsia, convulsions  or coma during pregnancy gestational diabetes, anemia future infertility , permanent disability, death  respectively. The In vitro fertilization (IVF) procedure used in surrogacy necessitate the prior intake of hormonal drugs or hormonal treatment by surrogate mother for preparing her body conducive for embryo implantation (and then bears the fetal risk of delivering not necessarily one but multiple children and thereby  in the process she is exposed  to range of  health risks .)  However over dosages of  hormonal drugs  causes adverse risks to surrogate mother in the form of hot flushes, nausea and in severe cases Ovarian hyper-stimulation syndrome ( OHSS )   which may be life threatening.  Due to this condition of OHSS  a young egg donor named Yuma Sherpa (23) died from over dosages of hormonal drugs after an egg donation in Delhi in the year 2014.

C section delivery :

IVF pregnancy are usually premature and needs to be operated through cesarean delivery which may expose the women to the risk of maternal mortality while delivery. There has been reported cases of death of surrogate mother named Easwari while delivering or giving birth to surrogate child after C section  causing  excessive bleeding  at a surrogacy clinic in Coimbatore.

Upto five successive attempts of surrogate pregnancy & three succestive attempts of embryo implantation:

The Bill allows for upto  five successful live births in her life including her own children, thus it implies that even if a women had one/ two child out of her own wedlock  she may be surrogate mother at least three or four times in her life time , thus subjecting a woman to three to four such attempts is clearly putting the life of women at risk. [Section 34 (5) ART Bill 2010]. The Bill allows for three successive attempts of implantation of embryo but there is no mention on the maximum or minimum number of ova that may be used in each of such attempt.

Multiple pregnancy & selective fetal reduction:

The ART Bill allows multiple pregnancy as well as selective fetal reduction [section 23(5)]  and the Bill allows upto three successful attempts of embryo transfers for the same couple.[section 34 (9)]. The infertility clinics usually implant five to six in vitro embryos within the surrogate mother in order to secure the successful result in all possibility but Multiple pregnancy entails grave health  risks as miscarriage, high blood pressure and pre-eclampsia. This fatal condition of pre -eclampsia was witnessed in the case of death of surrogate mother named PremilaVaghela about 36 years who died in coma during immediately after giving birth to the surrogate child in Gujarat in the year 2012. selective reduction is another synonymous for clinical abortion at the instance of ether the couple or the doctor or clinic in order to select at least one healthy foetus among and ensure successful live birth of same.

Denial of right to seek termination of pregnancy :

Another major shortcoming in the ART Bill is the non mention of the statutory right to seek termination of medical pregnancy  as guaranteed to every women under the specified condition of Medical Termination of Pregnancy Act (MTP) Act 1971 thus the surrogate mother is denied of right to seek withdrawal of  termination of surrogate pregnancy on her own choice or decision making. On the contrary surrogate is held to be duty-bound not to engage in any act that would harm the foetus during pregnancy  [section 34(23)] of ART Bill thus a legal obligation cast on the surrogate to failing which she may be held liable to legal action  by the couple. Hence surrogate is doubly victimized  firstly by denying established legal right secondly by imposing legal damages for seeking to exercise the same. This provision also  implies that the life of an unborn child or a possibility of foetus is given overriding preference over the existing life of surrogate mother.


No post Delivery care :

The ART Bill makes no mention of post delivery care for the surrogate mother or any other suitable health measures for reinstating  loss of health in case of any risk or sickness or disability arising out of or related to surrogate pregnancy which may impact the surrogate health in future.


NO social Security measure in case of death of surrogate mother :

There is no separate sum of money to be provided to the surviving family and children of surrogate mother in case of death or maternal mortality of surrogate mother.

No mention of stay arrangements  of Surrogate mothers :

The Bill makes no mention of the stay arrangement of surrogate mothers during the entire term of pregnancy but the clinics have make it mandatory on the surrogate mothers to compulsorily  stay at the premises provided by the infertility clinic which are some make shift stay arrangements called as surrogate hostels  for better check on the surrogate mother  during the entire course of pregnancy. Thus the surrogate mothers are made to stay away from her family, children which is denial of both right to conjugal marital rights as well as denial of custody and care of children and family for the surrogate mother and denies the surrogate mother’s own children.

Another omission in the bill is the lack of imposing accountability on the doctors, clinics who are administering treatment to the women. In the absence of effective law the infertility clinics are functioning without any  registration and accreditation as well as away from any government supervision leading to malpractices or  unethical medical practices for earning commercial gains. There are many cases of excess of drugs administration as well as cases of negligence on the part of doctors, staff but no action could be initiated as the law has no effect.

Insurance subject to availability :

Though the ART Bill mentions about insurance but it conditional subject to availability of such schemes and such insurance s available only for surrogate mother and excludes egg donors in the same [Section 34 (2) (24) ].   The surrogate mother , egg donor both are subject to a host of health risks. The Egg donor is subject to hormonal treatment and a medical surgery for production and extraction of eggs such procedure invariably carries with it the risk of serious medical conditions as ovarian hyper stimulation syndrome( OHSS ),  It has been found that there is dearth of insurance schemes to financially secure the surrogate pregnancy or egg donors.


Plight of surrogate mothers in Bangalore –

Majority of surrogate mothers in Bangalore are garment (sari) factory workers who are  paid a meager monthly sum of 3000 to 5000 rupees. These women are living below poverty line or just off the mark and look up to surrogacy as the sole lucrative option of getting rid of financial crisis. These women are either school dropout or illiterate or at the most SSLC pass. These women are only conversant with kannada and could barely scribble their names or sign in kannada and non conversant with English language. These women enter into surrogacy arrangement not as a choice but for economic compulsion and the money so earned is not for herself but for meeting the entire family expense thus under these circumstances there is hardly an voluntary ,informed consent of surrogate mother. These women due to their own personal educational limitations fail to understand the specialized technical nature of IVF pregnancy ,its consequent health side effects , the nature , mode of operation of different banks instruments as cheque, draft and these women do not necessarily have the copy of the surrogacy agreement that they had signed. In a nut shell the surrogate mothers stand in a vulnerable condition therefore necessitates legal safeguards, to protect her rights.

No State Government Records on Surrogate Mother & Surrogate Children –

It has been found that There is no State-level official statistical record on the number , sex ratio, sex ratio of surrogate children born in State per year and the number of women registering as surrogate mother in the hospital each year.

Present Status of Bill –

The ART Bill has been revised with necessary changes as the 2013 draft of ART Bill but the same has not been made public.  It is stated that the Bill is placed before the cabinet awaiting enactment soon. There is a legal void due to absence of statutory binding law on surrogacy at present .

End Remarks

India is one of the country where maternal mortality rates are among the highest in the world under such condition, the rampant violation of the reproductive or maternal health rights of surrogate mothers along with violation of other incidental rights generate alarming concern! There is an urgent need for stringent regulation and control on the  misuse and malpractices by  infertility clinics, law firms , agencies under the garb of facilitating commercial surrogacy and correspondingly to build a robust framework for securing  optimum health safeguards and other guarantee of legal rights and protection for surrogate mother  to be underwritten in the Bill.



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