No concern for surrogate mother’s own children in Indian Surrogacy Bill

Pub. Info. No concern for surrogate mother’s own children in Indian Surrogacy Bill ETHealthWorld  |  June 02, 2017, http://health.economictimes.indiatimes.com/news/policy/no-concern-for-surrogate-mothers-own-children-in-indian-surrogacy-bill/58954663

While India is on the verge of enactment of Surrogacy (Regulations ) Bill 2016 seeking to control exploitation of Indian surrogate mothers.  However the Bill omits safeguards to protect interest of surrogate mother. One of such omission is the custody, care for surrogate mother’s own children during the course of surrogate pregnancy.

The Surrogacy Bill under the prescribed conditions stipulate that a women in order to be surrogate mother must have at least one child of her own but there is no provision in the bill regarding care and support for surrogate mother’s own child. On the contrary, the surrogate mothers in India stay at the surrogate hostel, dormitories, shared apartments or such other arrangement as provided by the infertility or ART clinic thus staying away from her own home, family, children  for the entire duration of surrogate pregnancy. Considering the poor socio economic background of Indian surrogate mothers who live barely above the poverty line, their living conditions may be unhygienic, prone to diseases, infection, they may fail to maintain a healthy diet, regular medication on their own therefore for safe, successful pregnancy and better health of surrogate mother and the foetus (surrogate child)  such stay arrangements are deemed necessary in Indian context. However this separate, alienated stay arrangements questions the custody care of surrogate mothers’ own children for almost a year.

It is observed that the majority of surrogate mothers are within the age group of twenty five to thirty years with at least one child in the infancy stage ranging from zero to five years. During this age the child has special health needs, therefore custody, care of mother is necessary for early growth development of child. Separation of child may cause physiological, psychological impact and this may affect the  development of child.  For these reasons even the family courts as regular practice vest the custody of infants with the mother of the child and not with the father. Accordingly, some surrogacy clinics provide for surrogate mothers to live with their own children below three years but this is not necessarily followed in all surrogacy clinics.

For this period, the surrogate mothers makes ad hoc arrangements for the custody care, keeping of children depending on their own family background, personal means or feasibility. While a few surrogate mothers are fortunate who have their parent or in laws willing to act as ad hoc guardian to take care of the children during this time period and  in many cases, the surrogate mothers leave their children with relatives or sisters, friends where the children are not necessarily treated nor looked after well. Rather these children are made to do household chores in such family. There are some appalling conditions where the surrogate mother left their children in the orphanage for either absence or refusal by such grandparents or for lack of any other alternatives.

The Bill allows ever married woman to be surrogate mother, for these women  who are either widows or deserted, divorced by their husband, the plight of their children are faced/ fraught with greater hardships as these children have single mother parenting and in case of eventuality of maternal mortality or death of surrogate mother, these children are at greater risk of being rendered parentless, orphaned. Besides, there is no social security for surrogate mother’s own child, hence the plight of these children is alarming!  It may rightful to recall the case of Pemila Vaghela, (30) a surrogate mother lost her life while delivering the surrogate baby following heart attack leaving her two boys motherless who  had come to the hospital to take their mother back home in Anand Gujarat.  [ TNN, May 17, 2012 ] Such cases demonstrate the need for insurance for surrogate mother’s own child.

There are serious problems facing the children of such surrogate mothers who have migrated from other rural areas or towns to cities as their children not only are living away in different city or town or village therefore they may not even get to meet their mothers for close to a year.

In addition to these issues, many surrogates testify that living away from children, family for nine months is the most painful period. [ July 19, 2013 , the Hindu ] The surrogate mothers are worried about the child’s day to day needs as food, other necessities during their absence. This generates psychological stress and anxiety on them which may not be favourable for their pregnancy.  During the course of surrogate pregnancy, their children, family usually visit them once in a week or periodically in a month at the surrogate hostel or clinic premises [ The Hindu,  July 21, 2013 ]

There are a host of propositions for safeguarding the interest of surrogate mother’s own child. It is suggested that the child care support, crèche for surrogate mother’s own child may be termed as permissible expenses under altruistic surrogacy as provided under foreign legal jurisdictions, the UK Human Fertilization and Embryology Act 2008, Canada Assisted Human Reproduction Act, 2004 which mention child care support, crèche as a reasonable expenses under altruistic surrogacy regime. The surrogacy bill may provide for crèche facility for the children of surrogate mothers between the age group of 0 to 6 years along with nurses or attendants within the premises of the clinic along with the surrogate mothers so that there is no separation between the surrogate mother and the child for the same. The Surrogacy bill ought to provide for social security or insurance for surrogate mother’s own child.

These suggested provisions are more in consonance with the Directive Principles of State Policy [Art. 39(f) , Art. 45] of Indian constitution which imposes obligation on state to provide for early childhood care. The UN Child Right convention (CRC) 1989 to which India is a party also emphasizes on right to life, survival and development of the early child hood care  ( Article 6) and  right of child to be non separated from their parents unless it is in his or her best interest. (Article 9).

In the light of above mentioned, it is important to recognize surrogate mother’s own child as important stakeholders as there is important bearing on the lives of child of surrogate mother as these children are deprived of custody care of their mother for almost a year at the most critical, formative stage of their life coupled with gravest risk of losing their mother. There is a strong felt need to draw consideration on surrogate mother’s own children.

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