by Priyattama Bhanj
As surrogacy in India continues to grow by the day, the proposed law to regulate it continues to remain in incipient stages. The present guidelines are a consequence of those originally framed by the Indian Council of Medical Research (ICMR). However, these do not have any legal sanctity and are not binding. The present Assisted Reproductive Technology (Regulation) Bill, 2010 is yet to materialise into a much needed official regulatory mechanism and is undergoing debate amongst various ministries. The delay in enacting a legislation to regulate an industry that has been booming for almost a decade seems absurd because the bill was drafted as a response to demands for the regulation of the surrogacy industry and even four years after the first draft, there seems no sign of a legislation. What further escalates the situation is that each time the draft bill is sent around for circulation, in an attempt to redress existing loopholes, newer aberrations arise.
I aim at understanding why the current half-baked suggestions and provisions take us two steps backwards for every step that we take ahead. For this, I look at two important aspects of the given legislation. Namely, the restrictions imposed on foreign couples and the rights available to the surrogate mother. I conclude that the current draft bill suffers from a crucial flaw in the form of misplaced priorities.
Restriction for Foreign Couples
It is disheartening to see the concerned Central Government themselves unclear on what exactly should be the provisions in the legislation to regulate surrogacy; the Assisted Reproductive Technologies (ART) (Regulation) Bill 2010. While the Ministry of Home Affairs considers gay couples and single foreigners as ineligible to have a child through surrogacy in India, the Ministry of Health and Family welfare along with Women and Child Development ministry have opined that surrogacy should be allowed for everyone without discrimination. Consequently, a Sudanese national had filed a petition at the Punjab and Haryana High court, contending that foreign nationals cannot be discriminated against in matters of surrogacy against Indians. The High Court chose to dismiss this petition, upholding and in consonance with the Ministry of Home Affairs guidelines.  The Court held that since the position of law regarding rights of foreign nationals for surrogacy was not yet finalised in the form of a legislation, deciding upon a case concerning the same would not be correct. The emphasis in this particular case is on a foreign national, who is single and seeking to have a child through surrogacy. If the main reason for restricting surrogacy is to prevent exploitation of the surrogate mothers, as cited by most ministries, then it seems arbitrary that single persons be disallowed from seeking the procedure; because the exploitation happens due to the lucrative monetary compensation, which would remain the same irrespective of whether a couple, individual, citizen or non-citizen wishes to avail the option of surrogacy.
The Definition of the term “couple” in the 2010 draft bill includes all couples living together and having a sexual relation legalised in India.However, the 2013 draft has also brought in a few definitional changes to the previous bill. The term “couple” in the present draft is defined as a man and woman living in a shared household in a relationship along the lines of marriage, thus restricting foreign unmarried couples and singles from seeking to have a child through surrogacy.The current suggestion on banning foreign unmarried couples and singles from having a child through surrogacy has given rise to two very pertinent contentions. Firstly, it is argued by those against the proposal, that such a bias does not have a sensible or logical basis and there are more number of single parents in countries like the USA than India. Secondly, the judiciary recognises live-in relationshipsand the draft ART bill allows Indian single and unmarried people to avail this procedure. Such exclusion would hamper future drafting, thus either the restriction should be for Indians and foreigners alike, or have a better justification backing it. 
Further, apart from the patent discrimination the bill seeks to promote between foreigners and Indians, it is important to note that these measures would not address the problem at hand. This is because an the actual problem is that one of the intended parents may lose interest and abandon the surrogacy procedure. This had happened in the case of Baby Manji (Manji Yamada v Union of India  13 SCC 518 (SC) ) Such a problem cannot be solved by limiting the option of surrogacy for foreign couples married for a minimum of two years.Rather provisions mandating that the couple will be responsible for the baby under all circumstances and in the instance of divorce, separate custody proceedings should be initiated wherein either of the parents should be responsible for the child.
The new recommendations seem like a clash of international and national interests in a transnational industry. A legislation that is seemingly domestic in nature, in reality has far reaching consequences globally. A 2012 study by the Centre for Social Research (CSR) estimates that around 40 % of the clients are foreign couples visiting India for reproductive services and nearly 30% are single. Since most of the revenue for commercial surrogacy in India comes from clients outside the country, it is expected that such strict norms would see the surrogacy industry in other developing countries like Thailand surpassing and replacing the same in from India.
Rights of the Surrogate Mother
Surrogacy in India involves moral and ethical issues as much as commercial ones. The surrogate mother is be exposed to the society`s disapproval amongst other problems. The present bill mentions that consent of the husband of the surrogate must be taken before undergoing any agreement with the intended parents.  The lack of an independent say in the entire process mars the equitable nature of the surrogacy contract since the bill makes it seem that the compensation is reached to by a well balanced bargain between both parties. It has also been argued that the surrogate mothers do not have an independent say in the medical decisions either and this needs to be looked into. Given her social background it is improbable she would be in a position to bargain or negotiate the compensation amount even though Section 34(3) says that the surrogate mother will be involved in deciding the compensation amount. These women are usually from rural backgrounds and are attracted to the monetary compensation resulting from the surrogacy, without understanding the consequences of the procedure on their health. Even though the bill does mandate the number of times a woman may undergo live births and embryo transfers, it does not mention any other provisions for her welfare or safeguarding her from any health hazards. Additionally the lack of codifying other welfare needs such as counselling and support in instances of miscarriages or post-partum depression makes it seem as if the bill tilts a little in favour of the client and against the surrogate. Thus it is argued that there should be separate legal representation for the surrogate mother.
Another point that fails to come to the legislators’ attention is that of compensation, since the bill does not talk about the amount of compensation to be given to the surrogate’s family in case of death during or resulting from the pregnancy. Additionally, there is no definite amount mentioned in the bill that must be paid by the intended parents in a surrogacy agreement. Currently majority of the payment is to be made after the birth of the child as compared to the 2008 bill wherein three quarter of the payment was made before the birth of the child, reducing the financial risk on part of the surrogate mother. The intended parents are discouraged from directly approaching and broaching the issue of compensation with the surrogate mother, and it is the clinics in their capacity as the intermediary that channelize the payment.
Thus Surrogacy, currently seems to be a classic case of, unintentional, misplaced priorities. The tightening of visa norms and restriction on the ‘type’ of couples’ eligible to undergo this process is said to be done in an attempt to safeguard the interests of the surrogate mother. But the actual interests of the surrogate mother, like her medical, monetary and psychological interests are hardly being taken into consideration. The need of the hour is that instead of putting a cap on who can seek to have children through surrogacy, the rights of the surrogate mother need to be drafted in a way that her interests are better protected. This could be ensured by reducing the number of embryo transfers and live births a surrogate mother can undergo and since revenue is the very reason they agree to become surrogate mothers’, the government should fix a certain amount for each surrogate pregnancy such that the compensation from one surrogacy suffices and the women do not have to undergo the process again.
(Priyattama Bhanj is an Assistant Editor at the Journal of Indian Law and Society)
Teena Thacker, ‘Surrogacy law stuck as ministries bicker’ (asianage.com 2014) <http://www.asianage.com/india/surrogacy-law-stuck-ministries-bicker-713> accessed Jan 15, 2014
The Assisted Reproductive Technologies (Regulation) Bill 2010 s 2(h).
Vidya Krishnan, ‘India`s draft surrogacy Bill bars Homosexuals, live-in couples ‘ (livemint.com e.g. 2013) <http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draft-surrogacy-Bill-bars-homosexuals-livein-couples.html> accessed Jan 30, 2013
Staff Reporter, ‘One in FOUR children in the U.S. is raised by a single parent ‘ (dailymail.co.uk 2011) <http://www.dailymail.co.uk/news/article-1381069/One-FOUR-children-U-S-raised-single-parent.html> accessed Jan 30, 2014
Staff Reporter , ‘Live-in or marriage-like relationship neither a crime nor a sin: Supreme Court’ (timesofindia.indiatimes.com 2013) <http://timesofindia.indiatimes.com/india/Live-in-or-marriage-like-relationship-neither-a-crime-nor-a-sin-Supreme-Court/articleshow/26537308.cms?referral=PM> accessed Feb 1, 2014 Uday Gupta v Aysha and Anr. Special Leave Petition (Crl.) No. 3390 OF 2014
Manji Yamada v Union of India  13 SCC 518 (SC)
Consulate General of India, Vancouver BC, Canada, ‘Issue of visa for surrogacy’ (cgivancouver.com) <http://www.cgivancouver.org/devcgi/index.php/left-center-right/visa/surrogacy-purpose-visa> accessed Feb 1, 2014
The Assisted Reproductive Technologies (Regulation) Bill 2010 s. 35
AninditaMajumdar, ‘Transnational Surrogacy: The ‘Public’ Selection of Selective Discourse’, EPW, Vol – XLVIII, No. 45-46, November 16, 2013.
 “Surrogate Motherhood – Ethical or Commercial”, Centre for Social Research, http://www.womenleadership.in/Csr/SurrogacyReport.pdf See also, “Surrogate Mothers underpaid, uncared for” (deccanherald.com 2013 ) < http://www.deccanherald.com/content/345338/surrogate-mothers-underpaid-uncared-for.html >,
The Assisted Reproductive Technologies (Regulation) Bill 2010 s 34(16)
Raywat Deonandan & Andreea Bente, ‘India’s Assisted Reproduction Bill and the Maternal Surrogacy Industry ‘, International Review of Social Sciences and Humanities , Vol. 4, No. 1 (2012), pp. 169-173.
The Assisted Reproductive Technologies (Regulation) Bill 2010 s 34(9)
Supra note 16
Supra note 16
Sheela Saravanan, ‘Transnational Surrogacy and Objectification of Gestational Mothers’, EPW, Vol XLV, No. 16, April 17, 2010.