Bonded motherhood

Assisted Reproductive Technology Bill doesn’t protect surrogate mothers’ rights: Planning Commission

By Kundan Pandey
Last Updated: Thursday 11 June 2015

Bonded motherhood

Last year, Mala gave birth to a baby boy at a clinic in Delhi. The child was taken away from her soon after birth for he belonged to a childless couple. Mala, who migrated from West Bengal to Delhi in search of living some two years ago, received Rs 3.70 lakh for renting her womb to the childless couple. She says she agreed to be a surrogate mother for the betterment of her own children.

Asha is another surrogate mother. The 28-year-old from Punjab came to Delhi a few years ago along with her three children to escape her abusive husband, and started working as a domestic help. But she could hardly feed so many mouths with her meagre earning of Rs 3,000 a month. Last year, a surrogate agent approached her and she accepted the offer. She gave birth to twins and received Rs 1.75 lakh.

Mala and Asha are among the many women in the country who are opting to be surrogates as a way out of poverty, making India a favourite and cheap destination for those desperate for a child. According to Delhi non-profit Centre for Social Research (CSR), the business of surrogacy in India could be worth US $500 million. However, in absence of laws to regulate surrogacy (see ‘Lax attempt’), women who offer their wombs for a price, without realising the adverse health impacts, are only being exploited.

Words of advice
  • Surrogate mothers mostly come from poor socio-economic background and have no negotiating power. The Asisted Reproductive Technology Bill should ensure that a payment model is developed so that surrogate mothers are paid well and get a significant share of the payment in the beginning
  • The Bill should also ensure that the rights of children born through surrogacy are well- protected
  • The Bill should have provision to regulate all agencies imnvolved in surrogacy business, right from medical tourism agencies and hospitals to agents and surrogate homes
  • The Bill should mention the health risks from surrogacy and ensure that the risks are clearly mentioned in the consent form in detail
  • The provision of insurance should define the money and period of insurance. Considering the health risks that surrogacy entails, the Bill should have provisions of complete treatment and compensation to the surrogate in case of complications and compensation to her family in case of death
  • A state-sponsored legal counsel should be made mandatory in all arrangements of surrogacy. A monitoring agency should be appointed. All cases of surrogacy should be registered with the government

The Assisted Reproductive Technologies (ART) Bill, which aims to regulate the sector, has been hanging fire since it was first drafted in 2008. Revised in 2010, the Bill is with the Union Ministry of Law and Justice for concurrence. As the government is gearing up to present the Bill in the cabinet, health activists warn that the Bill falls short of safeguarding the rights of surrogate mothers and checking unethical practices in the sector.

On July 24, Sama, a resource group for women’s health in Delhi, showed a documentary film on the harsh reality of the booming surrogacy sector to the Planning Commission. “After watching the film and going through our survey reports, the Planning Commission has decided to address the loopholes in the draft Bill,” says Sarojini N of Sama.

Speaking to Down To Earth, Planning Commission member Syeda Hameed agreed that the Bill, drafted by the Indian Council of Medical Research (ICMR) under the Department of Health Research, is full of gaps.

Guarding commercial interests

Sarojini says the Bill aims to protect the interests of commissioning parents, hospitals and surrogacy agents by minimising legal requirements in the process of surrogacy and restricting the rights of surrogate mothers. For instance, it curtails their right to negotiate the terms and conditions of surrogacy.

A report by CSR, released on July 17, highlights two major flaws in the Bill.

One, it does not provide a payment structure for surrogate mothers. “They are the last ones to receive the benefit of this emerging market,” says Manasi Mishra, who heads CSR’s research and knowledge management department. CSR researchers recently interviewed 50 surrogate mothers and 25 commissioning parents from Delhi and Mumbai. They found that on an average commissioning parents spend about Rs 40 lakh to 45 lakh, but a surrogate mother hardly receives one-tenth of it. The rest is siphoned off by hospitals and surrogacy agents under the pretext of delivery through caesarian section or providing facilities like hostels to surrogate mothers. Even the paltry sum that is promised is hard to come by. The 2008 draft of the ART Bill had assured that surrogate mothers would receive 75 per cent of the payment in the first installment, soon after they sign the agreement. But the revised draft states that 75 per cent of the payment will be made as the last installment after the child is born. “This shift reflects that the priority accorded to the commissioning parents is much higher than that of the surrogate,” notes the report Sama submitted to the Planning Commission.

Indian Council of Medical Research introduces National Guidelines for Accreditation, Supervision and Regulation of Assisted Reproductive Technology (ART) Clinics. It also talks about surrogacy

Ministry of Women and Child Development holds the first meeting cum workshop to discuss surrogacy. Assisted Reproductive Technologies (ART) Bill is drafted

December 2010
ART Bill is revised

December 2012
Home ministry tightens visa to regulate commercial surrogacy

July 8, 2013
Home ministry bans homosexual couples and foreign single parents to opt for surrogacy

AUSTRALIA: Prohibits commercial surrogacy. Few states ban all types of surrogacy
CANADA: Prohibits commercial surrogacy
CHINA: Prohibits commercial surrogacy
FRANCE: Prohibits all surrogacy
GERMANY: Prohibits all surrogacy
ITALY: Prohibits all surrogacy
ISRAEL: Prohibits commercial surrogacy
INDIA: Allows surrogacy
NORWAY: Prohibits surrogacy
RUSSIA: Allows surrogacy
SINGAPORE: Prohibits surrogacy
SWEDEN: Prohibits surrogacy
UKRAINE: Allows surrogacy
UNITED STATES OF AMERICA: Commercial surrogacy is not allowed in some of states
UNITED KINGDOM: Prohibits commercial surrogacy
VIETNAM: Prohibits all surrogacy

What’s more, the Bill has no provision for payment in the event of miscarriage, still-births or failed attempts of in-vitro fertilisation (IVF is the only way to implant a fertilised egg in the surrogate mother’s womb). Besides, in several cases if the doctor finds that the embryo is unhealthy or not of the desired gender, they abort it without informing the mother. “About 80 per cent of the children born through surrogacy are boys. This suggests rampant illegal abortion,” says Ranjana Kumari, director of CSR. In cases of forced or accidental abortion, when a woman fails to deliver the result, they do not get single penny. “Worse, they are accused of not taking care of themselves. Logically, whenever, a woman signs the agreement as surrogate, she should be paid half of the total amount,” says Mishra.

The other flaw in the draft Bill is that it does not take into account the health risks that a surrogate mother might face due to repeated pregnancies or IVF attempts. Mishra points out that the draft Bill states that a woman can undergo IVF thrice for a commissioning parent and act as a surrogate for up to five successful births. But it does not consider the health impact of repeated pregnancy.

Risks like pre-term birth, multiple births and low birth weight, which are common in surrogacy, also do not feature in the Bill. Though it mentions “appropriate” insurance of surrogate mother and the child by commissioning parents, it does not specify the amount or the period of insurance.

Some experts suggest India should ban commercial surrogacy as has been done by several developed countries (see ‘Most countries...’). Mohan Rao, professor at the Centre for Social Medicine and Community Health of Jawaharlal Nehru University, Delhi, says commercial surrogacy is a form of exploitation, just like slavery. It should be banned the way sale of organs is banned.

Criticising the Bill, Hameed asks, “How can one expect that a woman will live at an isolated place for nine months and take the risk of developing life-long health problems just for Rs 2 lakh to Rs 3 lakh?” On the one hand, policy-makers advocate the importance of mother’s milk, but in the Bill they say surrogate mothers should not breastfeed the child to avoid emotional attachment, says Hameed. She points out another issue. “There are so many orphaned children in the country. By introducing the law, are we not sabotaging their chance of adoption?”

Hameed assures that the Planning Commission will set up an expert group to vet the Bill. “We will hold meetings with every section, including the civil society and experts of the subject. The suggestions would be included in the Bill,” she said.

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