'Medical risks, exploitation are key issues'

With the Department of Health Research (DHR) piloting the Surrogacy (Regulation) Bill, DHR secretary Soumya Swaminathan was living with the contentious legislation for the past several months. In an interview with Kalyan Ray of DH, she explained the government’s rationale and the way forward. Excerpts: 

The intention behind the bill may be noble, but it attracted a lot of criticism. How do you react? 

 The bill was drafted after many complaints were received from the women’s groups and activists. There is a PIL in the Supreme Court. There is a Law Commission report that says commercial surrogacy should be banned. The government was under pressure to take action against commercial surrogacy. 

When we looked at the global situation, we found that a majority of the countries have banned commercial surrogacy. Some nations like UK and Canada allows altruistic surrogacy. One option before the government was to ban surrogacy altogether, but there was a feeling that there are infertile couples who ran out of all options and could not conceive a child. Adoption was not an option. So it was decided that we should not shut all the doors and give those couple an option.

What about urban couples who don’t have a family member to become surrogate mothers?

If you keep the option open, then there is a risk of the provision being abused. The government was clear that those coming for surrogacy would come voluntarily knowing all aspects – risks and benefits – and still wants to help somebody. There are many clinics in India which does only altruistic surrogacy like the one at AIIMS, Delhi. Moreover, in India, it was a long-standing practice for families to give up children for each other. Within family, adoption is accepted in our culture. In any case, we have not defined the term ‘close relative’. That needs to be defined in the rules. The bill has still not been debated in Parliament and some of these clauses could change. 

Do you foresee a problem within the family if a child grows up knowing he/she has two mothers?

In the case of adopted or surrogate child, if the child finds out about the biological mother, that’s always an issue. Whether she is related to the family or not, psychological issue will be there.

In commercial surrogacy, there is no question of emotional bonding. But that won’t happen in a family structure. That’s theoretically possible. But like I said, in our culture, it was well accepted to adopt brother or sister’s child. That has not created a problem. If that has been managed well for generations, then I suppose that this could also be.

Why ban NRI couples?

Because they have to follow the rules of those countries where they live in. You remember the case of a Japanese couple who got a baby through surrogacy using the grandmother as the surrogate. Even after eight years, the child does not have the citizenship and the case is still being heard in the court. That’s why the home and external affairs ministries were very particular.

You cited examples of other countries. But can the societal realities of those countries be translated in India?

Look from the perspective of surrogate mothers. Why most of the countries banned commercial surrogacy despite having better healthcare facilities? They thought about exploitation. Studies in India have illustrated the class difference between commissioning couples and surrogate mothers. Nobody talks about the biological risks. Each pregnancy carries medical risks even if it is a small risk. 

In commercial surrogacy, you are asking somebody else to take that risk. Secondly, hormone treatment has to be done so that embryo can be implanted. Embryo implantation success rate is 20-30%. The procedure may have to be done repeatedly and the surrogate mother would be under prolonged hormonal treatment. After delivery, her lactation has to be stopped by drug treatment because she is giving up the baby at birth. The reproduction cycle has to be shut down.