Altruistic Surrogacy under Surrogacy Bill 2016 – The Socio-Legal Challenges Ahead

 

Altruistic Surrogacy under Surrogacy Bill 2016 – The Socio-Legal Challenges Ahead, Sunday, December 18, 2016 indiamedicaltimes, http://www.indiamedicaltimes.com/2016/12/18/opinion-altruistic-surrogacy-under-surrogacy-bill-2016-the-socio-legal-challenges-ahead/

The Surrogacy ( Regulation) Bill  2016 has been introduced in the parliament following cabinet approval which propose for the first ever legalization of altruistic surrogacy and prohibition and penalization of commercial surrogacy in India to put an end to exploitation of surrogate mothers.

The Bill 2016 describes altruistic surrogacy where in only a close family relative of the couple is permitted to act as surrogate mother in return for “monetary payment limited to medical expenses related to surrogate pregnancy and insurance ” and nothing over and above the same. On the other side, this Bill imposes a “blanket ban on commercial surrogacy” and imposes stringent “penal sanctions” including imprisonment upto ten years and fine upto ten lakhs for violating the provisions of the Bill.

Surrogacy as exploitative Not supported by RTI responses

The background statement objective preamble of the Bill emphasized on curbing exploitation related to surrogacy ,  but the very nexus between the surrogacy and exploitation has neither been born in effect by the RTI response from Government nor any such Government statistical study or report on the same.] Carrying forward this argument Dr. Shivani rightfully mentions refers to “a RTI request to the Indian Council of Medical Research (ICMR), the regulatory body for Assisted Reproductive Technology (ART), stated “The ICMR has not received any complaint from surrogates about their exploitation by doctors and others”.  [TNN, Aug 27, 2016]  She continues, “though Anecdotal evidence can make sensational headlines and can be used to emotionally modulate public opinion.”

A previous RTI reply from concerned Ministries, Government commissions revealed nil record on the total number of women registering as surrogate mothers annually in India. [Mainstream Weekly, April 5,  2014]  In the dearth of such crucial data, it is difficult to demonstrate the actual number, percentage of surrogate mothers who are exploited out of the total number of women registering as surrogate mother annually in India.

 

Altruistic surrogacy with family relative Not free from exploitation –

Quite contrary to the proposition in the Bill, Altruistic surrogacy with family relative without payment is not free from exploitation of surrogate mother. This is evinced by the reported death of an Indian surrogate mother R.Lal (29) who was forcefully made the surrogate mother for her sister-in-law’s baby by her husband and in-laws in order to compensate for insufficiency of dowry brought by her despite her unwillingness. She died of a massive heart attack while giving birth to a surrogate baby boy at a hospital in Ranchi , Jharkhand , on July 26, 2014. [Telegraph, August 2 , 2014 ]

 

Many similar cases might have not been reported being confined within the home. Under the authoritarian patriarchal familial structure India women are reduced to subordinate submissive role, the decision making power rarely or very marginally vests with the women, majority of women continue to be victims of domestic violence and barely safe at home, under such circumstances there are compelling emotional socio psychological coercion , patriarchal forces on the women to be surrogate mother for their family members without the personal voluntary consent of such women.  Hence altruistic surrogacy with close relatives is not free from the issues of free consent of women, thus even altruistic surrogacy is exploitative and fails the interest, welfare of surrogate mother. Thus altruistic surrogacy among the close relatives family would not ensure end of exploitation but renders it only more secretive as private household arrangement, taking it further away from the legal, judicial purview.

Dr. Shivani adds that “such case of death in the family has not sparked any research into these cases of altruistic surrogacy. There are extremely small number of cases of altruistic surrogacy being done which involve critical issues necessitating study but this has not sparked any research. A hasty decision without any study on its complications has made Altruistic surrogacy the panacea of all evils”!

The underlying premise is that if confining surrogacy with in the household by turning it to private party household arrangement is a solution to exploitation of surrogate mother? Or such private family arrangement is only making it more secretive, taking it further away from the legal, judicial purview.

Altruistic surrogacy Not supported by Surrogate mothers-  

It may be rightfully mentioned that altruistic surrogacy is not supported by surrogate mother who are the most crucial stakeholder in the same. These women are neither consulted nor granted any opportunity of fair hearing for representation of their interest. This is denial of natural justice to surrogate mother. Dr Shivani states that “No independent study of surrogate mothers has been done by the concerned Ministry. A group of 60 odd surrogate mothers visited the ICMR to present their concern but the were not met with any officials”. Subsequently Around 72 surrogate mothers under signed and submitted a petition to the ICMR but these have been inconsequential. [ The Hindu, November  06, 2015 ]

 

A petition of hundreds of surrogate mothers from across India approached the Supreme Court stating that their decision to be surrogate as a part of their bodily autonomy, personhood, these women reasoned their decision to be surrogate as their self voluntary informed choice denying any trick or falsehood or deception. These women also denied any exploitation rather they are satisfied with the medical services, health care facilities provided at these infertility clinics. Their petition refuted against “projecting surrogacy in a very negative light” and “equating surrogates with renting their wombs at any costs or for any reasons. “The surrogate mothers in the petition contend “breach of principle of natural justice” as these women are the most integral part of surrogacy, yet neither these women had been prior informed, nor included in the deliberation, drafting of the proposed law . [DNA, 26 November 2015,  DNA , 30 Nov 2015 ]

In this course, the surrogate mothers from SCI healthcare, led by Dr Shivani Sachdev Gour has been in the forefront seek to voice their representation, interest and strongly resisting any arbitrary government move against their interest.

This clearly shows that the process of law drafting has not be adequately participative, consultative transparent. It also appears that the testimonies of surrogate mothers are quite contrary to the proposed Bill. Dr Shivani maintains that “the bill in the guise of controlling exploitation takes away the rights of these women to make decisions for themselves and their reproductive rights. At the same time this does not seem to help the surrogate mothers.” This petition of surrogate mother was objected to by the Government Lawyer stating that it should wait the passage of the Bill. But Dr Shivani rightfully questions “How can the stake holders be consulted after a Law is passed”!

Curtailing availability of women to be surrogate mother- Limiting Reproductive choices–

The Bill permits “only the close relatives” of couples to be surrogate mother but the Bill doesn’t define the term close relative. It is ambiguous if close relative is synonymous with blood relatives or otherwise.

This provision reduces drastically availability of women to be surrogate mothers and restricts surrogacy. This acts as an impediment in access to reproductive or procreative autonomy or procreative freedom including family formation choices of couples to have genetically related child through surrogacy. This strikes at the right to privacy of couples which is a crucial constituent of right to life under article 21 of constitution as held by the supreme court in Kharak Singh vs State of UP (1963).  Dr. Shivani points out this provision presupposes an unrealistic underwritten condition that “All patients have a close relative (sister or sister in law) between the age of 25 to 35years who has had one child and is ready and medically and psychologically ready to do surrogacy for her sibling without any compensation for her time.” This precondition is neither workable nor pragmatic!

Altruistic familial Surrogacy are Rare Exceptions Not Routine-

It is pertinent to assess the incidence, frequency, trend of such cases of altruistic surrogacy. It has been found that altruistic surrogacy wherein family or close relatives of couples acted as surrogate are isolated unusually sporadic occurrences not routine or regular recourse.

Dr Shivani reiterates “a survey amongst IVF clinics in the leading metros has shown that in 99 percent of the cases no family member fulfilling the prescribed criteria are available or willing to be surrogate for their relatives. [ TNN , Aug 28, 2016 ] This means for 99 percent of couples who need surrogacy to get pregnant; no option has been given?” “This provision may exist only in paper does not corroborate with the ground reality at all. This takes the option of commissioning surrogacy away from the reach and ambit of couples, imposes another stern restriction on the reproductive choice of couples”.

Despite the limited chances or probability for availability, Dr Shivani strongly emphasizes on the issue of unwillingness of close relatives to be surrogate for their family members, as she shares from her experience, knowledge of case histories, interaction with patients availing surrogacy at her clinic, that “in many families the relatives do not cooperate rather they are better satisfied with lesser number of  successors or inheritors for the family property in order to gain greater individual share for themselves. Further this may give scope for familial disputes concerning inheritance, property issues with in the family”, hence this is one of the potent reasons against the choice of any close relative surrogate.

Criminalization Victimization of couples & Surrogate Mothers

For those couples who may not find such “close relative to be surrogate mother” they would be either compelled to travel overseas to liberal surrogacy legal regimes or they have to remain helplessly deprived of their reproductive right. Dr. Shivani speaks of “such affluent couples who can well afford to travel out of India and avail commercial surrogacy in leading commercial surrogacy hubs as in countries like USA California, Georgia,  Laos, Ukraine, or avail paid altruistic surrogacy or reasonably compensated surrogacy in UK, Canada. The Government has imposed prohibition on surrogacy otherwise than what is prescribed in the Bill. But for a fairly large section close to 90 % who can’t fulfil the family requirement the bill has not provided any options”.

Though the Surrogacy Bill provides for adoption but adoption is a socially benevolent choice for the community at large not selectively for the medically infertile couples only, also essentially it is a personal inherent choice and this can’t be state compulsion underwritten in the law for a section of society who suffer biological infirmity. Further more, the option of adoption may not be used as guise or excuse for taking away the reproductive freedom rights of couples to have access means to have genetically related child or such means of connection with regard to family formation.

It is a private right of an individual to choice or means of attaining parenthood family formation either through normal intercourse, adoption or using reproductive technologies including surrogacy this is a trite law and settled discourse as held by the highest court of the country in series of trailblazer cases and under International human right conventions. International Conference on Reproductive Health which equivocally established reproductive rights are human rights.

But such overseas commercial surrogacy by couples, surrogate mother is fraught with threat of subjecting them to criminal sanctions as imprisonment upto ten years,  fine upto ten lakhs rupees for violation of the provision of the Bill.

Amidst this, there is an alarming risk facing such surrogate child born overseas with respect to the right of child to entry permit in India, issue of Indian passport, citizenship!

This recalls the horrors of child being left stateless parentless, lying in orphanage or adoption agency while the parents, surrogates may be in jail! This issue assumes greater significance in India in the wake of Baby lily a Surrogate child born in India to a UK based couple facing the risk of being stuck in Indian orphanage. The Bill does neither envisage nor resolve such legal deadlock.

At the same time, this is worst ever criminalization of the reproductive health choices, procreative freedom, family formation choices and victimization of bona fide couples, surrogate mothers.

Speaking globally of altruistic legal jurisdiction,             

Limitation of Altruistic surrogacy – Dearth of Women to be Altruistic surrogate mothers-

The altruistic surrogacy has largely failed to work in prime altruistic surrogacy destinations primarily for the lack of availability of women to be surrogate mother as there is no incentive for women to be surrogate mother. Dr. Shivani refers to “the Australian Altruistic surrogacy model which allows altruistic surrogacy by unrelated women, this has shown hardly anyone can access such surrogacy rather this in turn resulted in the Australians being the largest users of Commercial surrogacy abroad”. [The Sunday Morning Herald 14 May, 2015]

It is significant to mention, the surrogacy regulatory authorities of Western Australia (WA) state that “only two altruistic surrogacy applications have been approved in the last financial year 2013- 2014 but there might have been 10 times or even two dozen times that went overseas”. [13 Aug 2014, abc.net. au ]

Australia is mooting a proposal  to legalize Commercial surrogacy after the Family court chief justice advocated for the same in one of the recent case hearings after acknowledging the altruistic surrogacy failure. [abc.net. au, 18 April 2015 ]

Alternative Flexible model of Altruistic surrogacy in Foreign Jurisdictions-

In most of the leading altruistic surrogacy jurisdiction, In UK under HEFA Human Fertilisation and Embryology Act 2008, In Canada under Assisted Human Reproduction Act 2004 altruistic surrogacy permits for a paid altruistic surrogacy regime allowing “reasonable compensation related to surrogate pregnancy  including a range of expenses as lost wages, child care support or crèche , local travel, to be paid to surrogate mother besides there is permissibility for both familial relative as well as unrelated or anonymous women to be surrogate mother.

In no other legal jurisdictions, there are such strict rigorous model of altruistic surrogacy as proposed in India with rigid payment control limited to insurance and medical bills and such preconditions of close family relatives surrogate mother only. The Indian bill may incorporate the necessary changes in the greater interest of the medically needy couples, surrogates

At the outset, The bill by legalizing altruistic surrogacy seeks to operate from the understanding that by changing the nature, form of surrogacy from commercial to altruistic by restricting payment, this would tantamount to ending exploitation and securing the welfare of surrogate mothers, but this does not corroborate with reality. On the contrary it causes arbitrary taking away and abridgment of the most cardinal constitutional, human rights of couples along with legally vexing issues which remain unaddressed!

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