Dr Shabana
It is said that necessity is the mother of invention and human quest for knowledge has brought changes in every sphere of life by the use of science and technology. Reproductive technology has made it possible for infertile couples and others to beget children with the help of assisted reproductive technology. As per WHO report, Global Infertility prevalence estimates (1990-2001), at the global level one out of every six people are affected by the inability to have a child at some point in their life. Thus infertility affects millions and in order to overcome this, reproductive technology has made significant strides and provided techniques which have provided solution for some forms of infertility. India stood out in field of fertility technology as well and became hub of affordable, high-quality assisted reproductive techniques. Initially only the private sector provided the infertility treatment through assisted reproductive techniques(ART) in the country but escalating demand led to mushrooming of infertility clinics in India. This expansion of clinics coincided with incidents of exploitation of patients and many other malpractices due to lack of regulation .The demand for regulatory oversight arose for public good which eventually led to framing of National Guidelines for Accreditation, Supervision and Regulation of ART clinics in India by Indian Council of Medical Research and National Academy of Medical Sciences in 2005 which filled the lacuna to some extent. However, as ART is an evolving field, these guidelines were found to be insufficient with the onset of new techniques and implications, be they legal or medical. Hence, the debate to have comprehensive legislation cranked up and culminated in passing of two legislations ,the Assisted Reproductive Technology (Regulation) Act,2021 and the Surrogacy (Regulation) Act,2021.The former Act was passed for the regulation and supervision of assisted reproductive technology(ART) clinics, gamete banks ,freezing of gametes etc., whereas later Act was passed to constitute Assisted reproductive technology boards at national and state level ,appointment of appropriate authorities for regulation of the practice and process of surrogacy, etc.
It is pertinent to mention that non-compliance of the provisions of the Acts would lead to consequences ranging from monetary penalties to jail terms and even cancellation of registration of a clinic or bank. No doubt India’s surrogacy and assisted reproductive technology regulatory regime has undergone landmark transformation after the implementation of these two laws but it has also opened up a Pandora’s box of other issues like age -limit for surrogacy, Single men, LGBTQ+ couples (married or cohabiting), live-in couples, and single unmarried women remain outside the Act’s scope. Moreover, there are different age limits for intending couple and commissioning couple under two legislations respectively, e.g. age of married commissioning couple under ART (Regulation) Act has to be between 21-50 for a woman spouse and 21-55 for a male spouse but under Surrogacy(Regulation) Act, the intending couple has to be married and between age of 23-50 years in case of female and between 26 -55 in case of male on the day of certification. In addition to this , under the surrogacy law ,the definition of couple complies with the Prohibition of Child Marriage Act,2006 but under the same law intending couple means a couple who are married( 23-50years female, 26-55 years male)and have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy which means a wife whose age is 18 will be eligible to avail surrogacy after she turns 23 and her husband whose age is 21 will be eligible after 26 years and that means there is wait of five years and this wait defies logic. Also, under ART (Regulation)Act any woman above the age of 21 years is allowed to approach ART clinic to avail services and there is no upper age limit which is a gap in the legislation. Under the Surrogacy Law, intending woman means Indian woman who is a widow or divorcee between the age of 35-45 years is permitted to avail surrogacy but not single unmarried women. Why does a woman who becomes widow or divorcee in her early or late twenties have to wait so long to avail surrogacy? A single unmarried woman is allowed to avail ART services under ART, Act if she is above 21 years like IVF ( in-vitro fertilization) but if she cannot carry a pregnancy to term due to some uterine defect then ART services will be of no use for her and the other option at her disposal would be to avail the services of surrogate and that is not permitted by law. These and many other lacunae have to be addressed.
Furthermore, as per surrogacy legislation, a surrogate mother must be gestational carrier and has to be genetically related to the intending couple or intending woman as per section 2(zg) of the Surrogacy(Regulation) Act,2021.This provision which promotes altruistic surrogacy has complicated the situation for thousands of infertile couples as this provision turned out to be death bell for commercial surrogacy in India. The motive to ban commercial surrogacy was to prevent exploitation of vulnerable poor Indian women who rented their womb for quick money though it was considered a win- win situation for impoverished surrogate mother and intending couple but over time, disturbing reports regarding exploitation and death of surrogate mothers due to pregnancy -related complications began to emerge which called for regulation and culminated into ban on commercial surrogacy. But altruistic surrogacy has not been able to accomplish the desired outcome so far as there is plethora of news reports regarding busting of rackets running illegal commercial surrogacy and trading of human egg. These rackets convince financially vulnerable women to donate eggs or become surrogate mothers and a large sum of money is offered as bait to these women from economically disadvantaged backgrounds. Not only this, a few clinics were found to have taken gametes from intending couple but did not implant the embryo into the womb of surrogate mother and after completion of nine months, infant was given to intending couple but after the DNA test it got exposed that infant bore no biological relation to them and couple was hoodwinked with the help of fake documents that infant is their biological child but in reality infant was of someone else.
Deep down inside ,we know that altruistic surrogacy in India is an uphill task and this premise is based on reality of our society especially of hinterland though a significant portion of city dwellers still oppose surrogacy as this arrangement goes against their religious, ethical beliefs. Commercial surrogacy had not yet sunk into Indian mind-set completely and now government has introduced altruistic surrogacy which is near to impossible to achieve in Indian families though exceptions are there. There is empirical data which shows that intending couples don’t disclose to the family that doctor has advised them to take third party help like, egg donor ,semen donor ,surrogate mother or embryo donor as there is fear of being looked upon with the contempt or fear of opposition by the family. But the surrogacy Act, 2021 makes it mandatory that genetically related (married woman) has to be surrogate mother for the intending couple. However, National ART & Surrogacy Portal of government of India states that it is not mandatory that surrogate mother should be closely related to the intending couple. Who qualifies as close relative or genetically related is not clear and this has also become a loophole which is being exploited by submission of fake documents that woman is related to intending couple. Seemingly, the woman who agrees to be surrogate for altruistic reasons is actually motivated by underlying commercial interests masked by the forgery.
There is urgent need for clarification of this legal grey area and for extremely robust document verification process which, at the very initial stage raises concern, after all, commercial surrogacy has been banned. Additionally, known surrogacy has considerable bearing on marital privacy as child bearing is a private matter of the couple which will not remain private .The decisions related to reproduction and childbearing are also protected under right to privacy and married couple’s private life may get disturbed after involvement of known married woman related to them to become surrogate as that would complicate family dynamics and complications during pregnancy would introduce stress to the intending couple’s lives and relationship. Besides this, surrogacy involves a complicated and risky process as surrogate mother’s body is prepared for embryo transfer, implantation, and sustenance of pregnancy, delivery. They are given hormones for weeks and along with that there are regular check-ups, ultrasounds etc. Why any relative would put herself in complexity as pregnancy induces physiological and emotional changes and there is no incentive for doing it except non-financial incentive like profound sense of satisfaction that she helped a couple in fulfilling the dream of parenthood. The Parliamentary Standing Committee made an important observation that ” pure altruistic drive for any substantial and meaningful contribution of someone else’s life is unreasonable to expect in today’s economic and social environment.”The gestational surrogacy also creates a unique relationship between surrogate mother and child and when gestational carrier is in close proximity, it could lead to many emotional implications for child, intending couple and the gestational carrier. This write-up has not been written with intention to oppose altruistic surrogacy but with the motive to highlight the gaps in the legislations and exploited loopholes which hinder the implementation of legislations effectively. As India’s reproductive technology is burgeoning, aligning legal frameworks with contemporary needs is not just necessary-it’s imperative.
(The author is from Jamia Millia Islamia University Delhi)
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