COLUMNS

Commercial Surrogacy in India - Bane or Boon?

An article on the growing industry of commercial surrogacy in India, and an overview of the laws - or lack thereof - surrounding this industry.

After business process, knowledge process and legal process outsourcing, genetic pool banks of India are the latest outsourcing industry from India. Would-be parents from the Indian diaspora in the US, UK and Canada and foreigners from Malaysia, UAE, Afghanistan, Indonesia, Uzbekistan, Pakistan and Nepal are descending on sperm banks and In-Vitro Fertilisation ('IVF') centres in India looking for South Asian genetic traits amongst sperm donors. Equally, renting wombs is another easy and cheap option in India. The relatively low cost of medical services, easy availability of surrogate wombs, abundant choices of donors with similar racial attributes and lack of any laws to regulate these practices is attracting both foreigners and non-resident Indians ('NRIs') to sperm banks and surrogate mothers in India.

India has surreptitiously become a booming centre of a fertility market with its 'reproductive tourism' industry reportedly estimated at Rupees 25,000 crores1 today. Clinically called 'Assisted Reproductive Technology' ('ART'), it has been in vogue in India since 1978 and today an estimated 200, 000 clinics across the country offer artificial insemination, IVF and surrogacy. So much so, in the recent decision of the Supreme Court on September 29 2008 in the case of Baby Manji Yamada,2 it was observed that 'commercial surrogacy' is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms wombs for rent, outsourced pregnancies or baby farms. It is presumably considered legitimate because no Indian law prohibits surrogacy. But then, no law permits surrogacy either. However, the changing face of the law is now going to usher in a new rent-a-womb law as India is set to be the only country in the world to legalise commercial surrogacy.

Japanese baby Manji was born on 25 July 2008 to an Indian surrogate mother with IVF technology. Her Japanese parents' egg and sperm were fertilised in Tokyo and the embryo was implanted in Ahmedabad. This case triggered complex issues, as the Japanese biological parents divorced and the mother disowned the infant upon its birth in India. Under Japanese law, Manji had to be supplied with an Indian passport in order to leave India for Japan, but unfortunately, under Indian law, a child's passport must be linked with the mother's. Given that her biological and surrogate mothers had abandoned any claim to her, this gave rise to the infant being stuck in legal limbo with the one parent who wanted her effectively being prohibited from taking her back to Japan. Finally, Emiko Yamada, the paternal grandmother of the infant, petitioned the Indian Supreme Court challenging the directions given by the Rajasthan High Court relating to production and custody of baby Manji Yamada. Her request to the Apex Court for permission for the infant to travel with her and for issuance of a passport was granted. Following the directions of the Supreme Court dated 29 September 2008, the Regional Passport Office in Jaipur issued an 'Identity Certificate' to the baby on 1 November 2008. Thereupon, the grandmother, Emiko Yamada flew out to Japan with the baby. A Pandora's box has opened with a floodgate of questions and issues related to ethics and legality surrounding surrogacy with Japanese baby Manji's case and even her citizenship status remains unclear.

In another separate case, Israeli gay couple Yonatan and Omer Gher became parents in India on 12 October 12 2008, when their child was conceived with the help of a Mumbai based surrogate mother in a fertility clinic in Bandra.3 It is reported that a 3.8 kilo baby boy was born to them at Hiranandani Hospital in Powai (Mumbai) on 12 October 2008.

Yonatan and Omer had been together for the past seven years and had decided to start a family. But since Israel reportedly does not allow same sex couples to adopt or have a surrogate child, India became their choice to find a surrogate mother. Yonatan and Omer first came to Mumbai in January 2008 for an IVF cycle when Yonatan is stated to have donated his sperm. Thereafter, they selected an anonymous 'mother'. Accordingly, the child was conceived with the help of a Mumbai based surrogate mother in a fertility clinic in Bandra. After the child was born, the couple left for Israel with the child on 17 November 2008.

Even though homosexuality is categorised as an 'Unnatural Offence' under s 377 of the Indian Penal Code as Indian law criminalises homosexuality, there is no bar to gay couples hiring a surrogate mother to deliver children for gay couples in India. Thus, there are reports in the media that there are numerous gay couples coming to India to look for surrogate mothers as India.

In the absence of any law to govern surrogacy, the Indian Council of Medical Research ('ICMR') issued Guidelines4 in 2005 to check the malpractices of ART. Silent on major issues and being non statutory, the guidelines lacked teeth and were often violated. Exploitation, extortion, and ethical abuses in surrogacy trafficking are rampant, go undeterred and surrogate mothers are misused with impunity. Surrogacy in UK, USA and Australia costs more than US$50,000 whereas advertisements on websites in India give varying costs in the range of US$10,000 and offer egg donors and surrogate mothers.
Genuine would be parents too are pitted against a insurmountable wall. A silent revolution is fast heralding a new dawn in matter of inter-country adoptions. However, the plethora of Indian laws, does not improve the plight of 12 million orphaned children in India who need adoptive parents. Child adoption in India is a complicated issue. It is over burdened with knotty legal processes and complicated lengthy procedures for those who want to give a new home and a new life to the reported 12 million Indian orphans. The Guardian and Wards Act, 1890 permits Guardianship and not adoption. The Hindu Adoption and Maintenance Act, 1956 does not permit non-Hindus to adopt a Hindu child. Requirements of immigration have further hurdles after adoption. Even though the Indian Constitution ordains it to be a sovereign, socialist, secular, democratic republic, 60 years of Independence have not given a comprehensive adoption law applicable to all its citizens, irrespective of the religion they profess or the country they live in as NRIs, Persons of Indian Origin ('PIOs') or Overseas Citizens of India ('OCIs'). Resultantly, those who cannot by law adopt and can be appointed only as guardians under personal Indian laws, turn to options of IVF clinics or rent surrogate wombs.

Should the law not change because these children need adoptive parents? May be the urge to be a parent has now taken over in the form of 'embryo adoption' wherein fertilized sperms and eggs developed into an embryo are successfully implanted in Indian clinics and nurtured by foreign mothers in their homeland ensuring hassle free adoption of Indian embryos without complicated procedures. Technology has overtaken law. It is in this perspective that India now needs to adopt another law to turn to actual reality dreams of those who live abroad rather than turning to unhappy and some times unethical practices. The time is now ripe for Indian laws also to legitimise adoptions.
In a phenomenal exercise to legalise commercial surrogacy, the Assisted Reproductive Technology (Regulation) Bill & Rules - 2008, a draft bill prepared by a 15 members committee including experts from ICMR, medical specialists and other experts from the Ministry of Health and Family Welfare, has been posted online recently for feedback.5 This 135-page document is a unique proposed law to be put before Parliament in the forthcoming winter session. It legalises commercial surrogacy stating that the surrogate mother may receive monetary compensation but would relinquish all parental rights. Single parents can also have children using a surrogate mother. Foreigners, upon registration with their Embassy can seek surrogate arrangements.

Before the law is put on the anvil, it needs a serious debate as it gives rise to a plethora of issues. Ethically, should women be paid for being surrogates? Can the rights of women and children be bartered? If the arrangement falls foul, will it amount to adultery? Is the new law a compromise in surpassing complicated Indian adoption procedures? Is the new law compromising with reality in legitimising existing surrogacy rackets? Is India promoting 'reproductive tourism'? Does the law protect the surrogate mother? Should India take the lead in adapting a new law not fostered in most countries? These are only some of the questions which need to be answered. Great introspection and thought is needed before rushing this Bill into law.

Anil Malhotra6
Ranjit Malhotra

E-mail: anilmalhotra1960@gmail.com;
malhotraranjitindia@rediffmail.com

Notes
1 One crore is ten million rupees.

2 Baby Manji Yamada vs. Union of India and Another, Judgments Today 2008 (11) Supreme Court 150.

3 See The Times of India, New Delhi edition of 18 November 2008.

4 See www.icmr.org.in

5 See www.icmr.org.in

6 The authors are advocates practising at the Punjab and Haryana High Court, Chandigarh, India and specialising in all areas of matrimonial and family law, child protection and foreign court orders. Both are Fellows of the International Academy of Matrimonial Lawyers.