It could be a scene out of a saas-bahu soap opera. A young bahu endures the trauma of multiple miscarriages, her uterus is simply unable to carry a baby to term. Luckily, there is the other, fecund bahu in the family, and the entire clan begins looking at her with great expectations. It is now her “duty” to carry their child in her accommodating womb, for the sake of the parivaar. After all, “we are family”, as a blockbuster tagline once said.
The Draft Surrogacy Bill 2016, recently cleared by the Union cabinet, seeks to ban commercial surrogacy to prevent exploitation of surrogates. But observers say the bill might put another set of women under duress.
Sushma Swaraj, head of the Group of Ministers (GoM) which cleared the bill, said the law would only allow altruistic surrogacy, by close family members of the couple. The bill does not define close family members yet, but Swaraj said while the UK law, from which this bill has taken inspiration, restricts surrogacy to blood relatives, in India, it will be expanded to cover sisters-in-law and cousins, too. “That spells it out for the bhabhi,” said former additional solicitor general Indira Jaising. “You know the coercive tactics in Indian families. She won't have a choice.”
Women are coerced everywhere, that's the ugly truth, agreed Soumya Swaminathan, head of Indian Council of Medical Research (ICMR) that aided drafting the bill. “Yes, there could be pressure at home. But we have to first worry about the commercial surrogate. Who knows how her family forces her into surrogacy for money? She may be tempted or coerced to surrogate multiple times. The whole idea of this bill is to make surrogacy as difficult as possible.”
It does not make it easier on the child-seeking couple either, who will be in an uneasy debt to the womb-donating relative. With commercial surrogacy, parents have the choice of telling the child about the circumstances of its birth; within the family, secrets may tumble out. Swaminathan, however, said India had a tradition of adopting within the family. This is an extension of that tradition.
Legal experts say several clauses could be challenged in court for violating or impinging upon personal freedom. According to the bill, altruistic surrogacy will be allowed only for couples married for at least five years, having no child, either natural born or adopted. The aim, said Swaraj, is to make surrogacy the last resort. She added that the government wanted to prevent surrogacy from becoming a fashion, especially among celebrities who have already got natural children, and want another one, but do not want to go through the process of pregnancy and labour. “We are not China, where the government decides how many children a person can have,” said Shivani Sachdev, who runs a successful surrogacy enterprise in south Delhi.
There are unexplored situations. What if a surrogate miscarries? What if two adopted children with no known relatives, marry and want a child? Increasingly, urban couples have only one child and a generation later, the pool of relatives will shrink. “Laws should envisage emerging scenarios,” said Sachdev.
Surrogacy took root in India 15 years ago and rapidly mushroomed into an industry. According to Swaraj, around 2,000 children are born of surrogacy in the country, every year. Unofficial figures are higher. Surrogacy could cost a couple around Rs 10 lakh. For foreigners, it was cheap. (As against $40,000 in India, they would have to pay around $110,000 in the US).
However, soon, issues popped up. There were reports of commissioning parents abandoning children with birth defects, or leaving the girl twin while taking the boy. Surrogates are poor and though the fees of Rs 3.5-5 lakh may seem princely, it is pittance compared to other countries.
The case of baby Manji was an eye-opener. The child was commissioned by a Japanese couple in 2008, through donated egg. The couple divorced during the pregnancy. The woman did not want the child, the man did, but Indian laws then didn’t allow a single man to adopt and Japanese law did not accept surrogacy, leaving Manji in the lurch. The story ended happily and Manji went to Japan, but not before putting the spotlight on why India needed surrogacy laws.
ICMR framed some guidelines, which now regulate surrogacy. For-eigners, for instance, are not allowed since last year. “There is need for law, it should regulate, not ban,” said lawyer Vishnu Sharma, who submitted an intervention on behalf of surrogate mothers, in a case filed against the business of surrogacy by Jayashree Wad. The case is still to be decided. Jaising added, “I see no point of a separate law for surrogacy. It should be part of the entire gamut of assisted reproductive technologies.”
The Assisted Reproductive Technology (Regulation) Bill draft is yet to be presented in Parliament. “Ideally, surrogacy should be in the ART bill, but the Supreme Court, hearing Wad's petition, asked the government to frame rules, so we fast tracked surrogacy laws within months. Normally it takes years. The ART bill is also ready. I hope they are tabled together, so there can be one regulatory authority,'' said Swaminathan.
This bill will be tabled in Parliament during the winter session, and is likely to be sent to a standing committee. “There will be chance for certain issues to be resolved, when it is vetted by experts and debated in the House,” Swaminathan assured.
Poetically, the future may not be ours to see. But research on extra uterine pregnancies (in artificial wombs) that do not involve surrogates is on across the world. In coming decades, that could be the next disruptive technology to deal with.
What the bill says
Who can have a surrogate child
* A legally married Indian couple, childless for five years, having no adopted child. The woman should be between 23 to 50 years of age, the husband 26 to 55.
* The couple should have a medical certificate to prove they cannot conceive/carry the child to term.
* Single men or women
* Live-in partners
* Same-sex couples
* Foreign nationals, overseas citizens of India
* A couple, in which a spouse has a child, biological or adopted, from a previous marriage
Who can be a surrogate mother?
* Only a close or blood relative of the couple—mother, sister, sister-in-law, niece, cousin