Surrogacy Bill 2019 disempowers women, supersedes more pressing legislation on artificial reproductive technology

  • Anyone acquainted with fertility treatment understands that it is the whole process of Artificial Reproductive Technology (ART) which has to be regulated.

  • Infertility is a medical issue, not a social one as many think it is. It may not be life-threatening, but that does not mean it shouldn’t be treated.

  • The Surrogacy Bill is supposed to give protection to surrogates. But if commercial surrogacy is banned, will surrogates really get protection?

And so, finally, the controversial Surrogacy Bill was passed. Silently and stealthily while most of the nation was preoccupied with the major event unfolding in Kashmir. It slipped through the cracks with all its flaws intact, impervious to all the suggestions made. And to what purpose?

It is obvious to anyone acquainted with fertility treatment that it is the whole process of Artificial Reproductive Technology (ART) which has to be regulated. Surrogacy is just one small aspect of it. Passing such a bill before passing the ART Bill (which has been in cold storage for more than a decade) is meaningless.

To put things in perspective, infertility is a medical issue, not a social one as many think it is. It may not be life-threatening, but that does not mean it shouldn’t be treated. Especially when treatment is available. For all those who go in for fertility treatment, the desire to have a genetic child of their own is visceral. They go for the treatment which can be prolonged, expensive and at times painful because they really want that child.

Fertility treatment involves harvesting gametes (eggs and sperm) from the intending parents and producing an embryo through In Vitro Fertilisation (IVF) outside the womb. This embryo is then implanted in the womb of the mother for gestation. If the woman was born without a womb or her womb was damaged by disease or had become unviable for some other reason, then the couple may have to get a surrogate to provide a womb. This happens in about five percent of the cases.

 Surrogacy Bill 2019 disempowers women, supersedes more pressing legislation on artificial reproductive technology

Representational image. Reuters

Artificial Reproductive Technology (ART) is not new. It has been in existence for decades and has evolved to a point where an embryo created in a test tube through IVF can be implanted in an unrelated viable womb to ensure it reaches safe gestation. This is done in the same fertility clinics where the embryos are created, presumably under the scrutiny and supervision of qualified doctors and embryologists.

Fertility clinics have mushroomed all over the country in an unregulated manner over the last two decades. Their growth has been phenomenal. The top rung clinics have state of the art equipment and experienced and well-qualified doctors. But there are many other fly-by-night clinics which offer fertility treatment at cheaper rates and guarantee “100 percent success”. Many of these are run by unqualified persons posing as embryologists and fertility experts. That is where the exploitation begins. And it is here that regulation is crucial.

In 2008, recognising the need to regulate the entire process of fertility treatment, the Indian Council of Medical Research (ICMR) drafted an ART Bill. But, this Bill was never tabled. It was revised twice in 2010 and 2014, but continued to remain in cold storage. The Bill’s stated objective was to regulate the functioning of ART clinics to ensure that “the services provided are ethical and that the medical, social and legal rights of all those concerned are protected.”

The drafting committee consisted of eminent doctors working in the field. They proposed to look into how all aspects of fertility treatment could be regulated. This included “procedures for accreditation and supervision of infertility clinics (and related organisations such as semen banks) handling spermatozoa or oocytes outside of the body, or dealing with gamete donors and surrogacy”.

By 2017, a new proposed Surrogacy Bill was to be tabled. This Bill completely ignored the ART Bill which had been drafted with so much input from experts. Instead of addressing the need to regulate the whole process from beginning to end, the new Bill only focused on the end point which was the need to hire surrogates in certain specific cases.

A Parliamentary Standing Committee appointed by the Rajya Sabha to look into the proposed Surrogacy Bill in 2017 came out with a condemning report which among other things said: "The committee fails to comprehend the reasons behind bringing a fresh bill specifically on surrogacy, when a detailed, comprehensive and all-encompassing Bill on ART services had already been drafted by the Department."  Despite this, the government, in a puzzling move, chose to leave the ART Bill in cold storage and go ahead with the Surrogacy Bill which had drawn so much flak.

A person’s right to reproduce or not to do so is a constitutional right which has been reinforced by courts in several judgements. In 2012, Justice KS Puttuswamy ruled that women have a constitutional right to make their own reproductive choices and that this was an inalienable right connected to all other fundamental rights.

The Surrogacy Bill does not recognise any of these rights. Only legally married heterosexual couples who are certified as infertile are allowed to hire surrogates. This excludes a large swathe of people like single persons, divorcees, live-in couples, widows and widowers, gay couples and a host of others. Other rights like privacy while making reproductive choices are dumped.

It is interesting to note here that India's first IVF baby, Kanupriya alias Durga, was born in Kolkata on 3 October, 1978. The commissioning parent for this first Indian baby, which was born through a surrogate several decades ago, was a single man. We have obviously regressed over the last 40 years.

The Surrogacy Bill is supposed to give protection to surrogates. But if commercial surrogacy is banned, will surrogates really get protection? How will a surrogate then be compensated for putting her life on hold for two years in order to carry someone else’s child in her womb? Who will compensate her for her earnings which she may have to forego during this period?

Altruism is a euphemistic term. In the fertility clinics, today women who sell their eggs or men who sell their sperm are called “donors” even though they are paid for parting with their gametes. This can happen in the case of “altruistic” surrogates too. Maybe, then, we will have to use one more euphemism and call it Compensated Surrogacy.

The Bill doesn’t define who is a close family member. It doesn’t recognise the fact that altruism within a family can be forced on a weak or vulnerable woman through patriarchal pressure or emotional blackmail. And if she does have problems she won’t have recourse to outside help as it would be deemed a “family” matter.

It would be more practical and straightforward to acknowledge that a woman who is carrying a baby for another is doing it because she hopes to get compensated properly and will get to build a better life for her family. While researching my book Baby Makers I met a number of surrogates in different parts of the country. Of these, only two women were altruistic surrogates carrying babies for their biological sisters.

Most of the women came from economically weak backgrounds and viewed surrogacy as a job which would bring in enough money to educate their children better or buy a home. Every surrogate was fully aware that she had to give away the baby as soon as it was born. None of them wanted any more babies of their own as they already had enough mouths to feed. Most of the bigger clinics had contracts which gave protection against exploitation to both the intending parents and the surrogates.

The most important thing is to remember that the fertility business deals with precious human life. Life which has been created with a lot of love and thought. Imposing irrational bans can only spell disaster.

Updated Date: Aug 14, 2019 10:03:13 IST