In the complicated and long-winding world of law-making in India, not many legislations are reviewed by two different parliamentary panels and that, too, under the same prime minister and the same political party in power. The fact that the Surrogacy (Regulation) Bill went through such an exhaustive scrutiny underscores the complexity of ethical and moral issues that the controversial law seeks to address.
Who can be a surrogate mother? Can surrogacy be allowed as a means of earning? Can a couple be permitted to go straight to commercial surrogacy, skipping the normal route to parenthood? What kind of protection can the intending couple provide to a surrogate mother and for how long? Can a single woman be a mother through surrogacy? What could be the relationship between a child and the surrogate mother? Each of these questions, and many more, open up an ethical minefield, with no clear answers.
Precisely for that reason, the Bill, which has its genesis in a decade-old Law Commission report and a few Supreme Court litigations, was reviewed first by a Group of Ministers headed by then External Affairs Minister Sushma Swaraj and subsequently by the Parliamentary Standing Committee on Health, then chaired by veteran Samajwadi Party leader Ramgopal Yadav. The Lok Sabha cleared the Bill, but the Upper House decided to have a third look at the draft law.
In its report, tabled earlier this month, the Rajya Sabha Select Committee chaired by BJP member Bhupender Yadav suggested 15 changes, including doing away with altruistic surrogacy in which only a willing family member can be a surrogate mother. The mandatory waiting period of five years for a married couple before opting for surrogacy has also been junked, besides permitting a single woman to become a mother through the surrogacy route.
The commercial-versus-altruistic debate lies at the core of the row. The RS panel favoured surrogacy by “any willing woman” than a family member making a distinction between “commercial surrogacy” and “compensatory surrogacy.”
The committee agreed that the proposed law would “significantly reduce the availability of women to act as surrogate mothers.” Also, as urbanisation spreads, “younger married couples didn’t necessarily have close relatives anymore or they might be cut off from them, or the close relatives might not be geographically accessible,” it noted.
Moreover, surrogate pregnancy being a private affair, a majority of the patients want to keep their treatment private and confidential. The precondition that the surrogate mother be a close relative would also violate the basic right to privacy and reproductive autonomy of the infertile couple.
The draft law also ignores the ground reality that in most Indian families, women have little decision-making authority. This would create a situation where women in families, especially close relatives, would be coerced into providing reproductive labour.
Doctors concur with the idea. “In today’s world, families are so nuclear that they would not be able to find anyone to become surrogate. With the number of siblings being fewer these days, it is increasingly difficult to find someone within the family ready for altruistic surrogacy,” said Nikhil Datar, a senior gynaecologist and medical director at Cloudnine Hospital in Mumbai.
“Also, in commercial surrogacy, there is no interaction between the child and biological mother. But in altruistic surrogacy, if the child stays close to the surrogate mother, it could lead to emotional issues within the family,” he told DH.
The Standing Committee on Health, too, gave similar suggestions in its 2017 report. “The altruistic surrogacy model is based more on moralistic assumptions than any scientific criteria and all kinds of value judgments have been injected into it in a paternalistic manner.”
“Altruistic surrogacy is another extreme and entails high expectations from a woman willing to become a surrogate without any compensation or reward but a decision based on noble intentions and kindness...the proposed altruistic surrogacy is far removed from the ground realities,” the panel had stated.
But the Union Health Ministry didn’t agree and retained the clause in the Bill that was passed by the Lok Sabha. With the Select Committee echoing the Standing Committee’s view, the ball is now back in the ministry’s court.
The idea of a couple waiting for five “infertile” years before being eligible to opt for the surrogacy route to parenthood has also been done away with. The lawmakers pointed out there were many medical conditions that clinically disallow fertility.
“It should vary from case to case. But there are medical conditions for which there is no point in having a five-year waiting period. I have a patient who can’t harbour a foetus because that would risk her own life. She has been medically advised not to have a pregnancy. For such cases, the waiting period makes no sense,” Datar said.
The Committee noted there might be certain proven medical conditions, like the absence of uterus by birth, non-functional uterus, removal of uterus due to cancer, fibroids or patients with chronic medical condition for whom normal pregnancy is ruled out and surrogacy is the only option. The requirement of obtaining a certificate of proven infertility is not justified in such cases.
Another major change recommended by the Select Committee is to allow a single woman, such as a widow or a divorcee in the age group of 35-45 years, to avail surrogacy, removing the provision of requirement of five years as the period of inability to conceive before opting for surrogacy. Persons of Indian Origin (PIO) can also opt for surrogacy in India.
“There are conditions under which a single person genuinely needs to avail surrogacy option to have a child. One such situation is of a young widow, who is otherwise capable but cannot carry a child for fear of social stigma attached to pregnancy of a widow in our society.”
To take care of the interests of surrogate mothers, the panel recommended increasing the insurance cover from 16 months, as proposed in the Bill, to 36 months, besides suggesting that the intending couple should also provide for nutritious food for the surrogate mother.
The Select Committee also recommended enacting the Assisted Reproductive Technology (ART) Bill – another pending legislation – before making the surrogacy law, to get a handle on IVF clinics that have mushroomed all over the country. Only a section of them has registered with the Indian Council of Medical Research, leaving infertile couples as well as would-be surrogate mothers at the mercy of such clinics which do not care for medical ethics.
The Standing Committee quoted a study by Ernst and Young (Call for Action: Expanding IVF treatment in India, July 2015), which says that around 27.5 million Indian couples in the reproductive age group are infertile and 1% (about 2,70,000 couples) seek infertility evaluation. Of the people seeking remedy for infertility, 20-25% undergo IVF treatment, and of that small group, 1% may require surrogacy.
The study also said 10-12% of surrogacy is commissioned because of irreversible destruction of uterus due to TB, 8% because of absence of uterus, 12% because of multiple failed IVF cycles, 12% because of multiple miscarriages, 10% because of removal of uterus due to cancers and fibroids.
When ICMR was asked about the extent of the infertility problem in India, the agency told the Select Committee that there wasn’t any national-level government survey and the National Family Health Survey-5 -- India’s biggest public health data collection exercise -- for the first time will have questions on assisted reproduction and surrogacy.
Initiated this year, the NFHS-5 can provide breathing space to the ministry to get the ART Bill passed and determine the extent of the problem accurately as it has now been left to the Harsh Vardhan-led ministry to undo what his predecessor (and current BJP president) J P Nadda did.