surrogate motherhood: an empirical...

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CHAPTER 6

SURROGATE MOTHERHOOD:

AN EMPIRICAL STUDY

Surrogate motherhood is variously described in emotive terms such as “rent a

womb” or, on the other hand, “gift of love” or “gift of life” depending on a particular

viewpoint. Regardless, surrogacy is a source of considerable legal, moral and ethical

debate all over the world.

A surrogate mother’ is a woman who agrees to be artificially inseminated with the

sperm of a man whose own wife is incapable of conceiving or carrying a child to term. In

the typical case, the surrogate mother conceives, carries the child for nine months, gives

birth, and then releases her parental rights, giving up the child to the infertile couple for

adoption. Although surrogacy has occurred throughout history, the issue is currently firm

on the public agenda. New reproductive technologies have added significantly to the

potential of surrogacy, making it necessary for the law to specifically address all aspects

of the issue. There are moves to introduce surrogacy legislation in India.

Few really acknowledge and understand the utter seriousness of this issue that is

gaining such widespread notoriety. It is important to note the problem with all of the

issues raised for and against surrogacy is that the principles do not apply generally.

People involved in surrogacy arrangements are individuals and they may or may not be

affected or influenced by each of the factors related to surrogate motherhood. There is a

strong need for Indian research on the effects of surrogacy on commissioning parents and

surrogate mothers and its impact on the emotional, social and intellectual development of

children born from a surrogacy arrangement.

A survey in this regard was conducted in various states of India. The methodology

adopted for this study was exploratory research of the social and legal aspects involved in

surrogate motherhood through the means of a survey. The tools included two separate

structured questionnaires612 for legal experts and medical experts. One questionnaire of

612 Copies of these questionnaires are enclosed as Appendix I and Appendix II.

224

total of thirty questions to be filled by IVF clinics/doctors and other questionnaire of total

of twenty one questions to be filled by legal experts were drafted to collect the

information about different aspects of surrogate motherhood. The sample size consisted

of one hundred legal experts and fifty IVF clinics including doctors. The final report aims

to highlight the major findings and suggests recommendations for future policy

implications. Followings are the findings based on this survey.

1. General conception of the term Surrogate Motherhood

Though the term Surrogacy is relatively new in India, yet people have a general

idea about the concept of surrogate motherhood. It was asked from a finite set of legal

experts as well as medical experts as how do they see surrogacy. Majority of them i.e. 54

per cent (legal experts) and 90 per cent (medical experts) considered surrogacy as a

“boon for infertile couples.” Very few of them referred it as “baby selling” or “immoral

practice” (Table 6.1 and Figure 6.1).

Table 6.1

General conception about surrogate motherhood

S.No. Response Legal Experts Medical Experts

Frequency % age Frequency % age

1. Boon for Infertile

Couples

54 54% 45 90%

2. Baby Selling 09 9% 05 10%

3. Immoral Practice 10 10% Nil 0%

4. Service to Humanity 27 27% Nil 0%

Total 100 100% 50 100%

225

Figure 6.1

General conception about surrogate motherhood

0

10

20

30

40

50

60

70

80

90

Boon for

Infertile

Couples

Baby Selling Immoral

Practice

Service to

Humanity

54

9 10

27

90

10

0 0

Legal Experts

Medical Experts

2. Contract for Surrogacy arrangements

Surrogacy relatively being a new concept in our country, it is continuously being

argued whether to have a legal contract between the parties i.e. the surrogate mother and

the intended parents. The Survey shows nearly 81 per cent legal experts favored the

presence of a formal contract between both the parties. 13 per cent were of the view that

such a contract is not that much necessary. Only 13 per cent of them said that there is no

requirement of any such contract [Table 6.2(a) and Figure 6.2(a)]. And in response to the

same question 82 per cent of the IVF clinics/doctors said that there is a formal contract

between the said parties. 14 per cent said that surrogacy contract is not necessary and it

only depends upon the wish of parties [Table 6.2(b) and Figure 6.2(b)].

226

Table 6.2(a)

View of legal experts regarding the requirement of a contract for surrogacy.

S.No. Response Frequency % age

1. Yes 81 81%

2. No 03 03%

3.

4.

Not necessarily

Can’t say

13

03

13%

3%

Total 100 100%

Figure 6.2(a)

View of legal experts regarding the requirement of a contract for surrogacy.

0

10

20

30

40

50

60

70

80

90

Yes No Not necessarily Can’t say

81

3

13

3

227

Table 6.2(b)

Signing of a formal contract between the parties through IVF clinics/doctors


1. Yes 41 82%

2. No Nil 0%

3.

4.

Not necessarily

Can’t say

07

02

14%

4%

Total 50 100%

Figure 6.2(b)

Signing of a formal contract between the parties through IVF clinics/doctors

82

0

144

Yes

No

Not

necessarily

3. Surrogacy arrangements ensuring the best interest of the entities involved

The surrogacy arrangements directly influence the intended parents, surrogate

mother as well as the child to be born. When asked, majority of legal experts i.e. 41 per

cent considered the best interest of all of them. The other fractions in the survey favoured

them individually. And similarly majority i.e. 56 per cent of IVF clinics/doctors favoured

the best interest of all the entities involved in a surrogacy arrangement (Table 6.3 and

Figure 6.3).

228

Table 6.3

Opinion regarding best interest of the entities involved in surrogacy

Figure 6.3

Opinion regarding best interest of the entities involved in surrogacy

0

10

20

30

40

50

60

Child to be

Born

Surrogate

Mother

Intended

Parents

All of above

23

13

23

41

32

48

56

Legal Experts

Medical Experts

S.No. Response Legal Experts IVF clinics


1. Child to be Born 23 23% 16 32%

2. Surrogate Mother 13 13% 02 4%

3. Intended Parents 23 23% 04 8%

4. All of above 41 41% 28 56%

Total 100 100% 50 100%

229

4. Running of ART/IVF clinics

With the advancement in assisted reproduction, ART/IVF clinics are

mushrooming in the country. The misfortune of childlessness, in modern times, is met by

highly innovative medical advancements in the reproductive technologies like surrogacy.

Infertile couples even from other countries are coming to India to realise their parenthood

dream through surrogacy because, here in India, cost of surrogacy is relatively much

cheaper than in other countries. Surrogacy is the way to overcome both biological and

social infertility. It provides medically infertile couples as well as socially infertile

individuals who are not willing to get married with a chance to have a child of their own.

The practice is going to continue to grow with more individuals and couples willing to

use ART to assist them with infertility problems. However, there is legal vacuum in this

area of Medical advancement and adequate measures has to be taken in these medico-

legal issues specifically to regulate and control the functioning of ART clinics in India in

order to stop the exploitation of the parties involved in surrogacy arrangement (surrogate

mother and intended parents) at the hands of these clinics.

4.1 Regulation of IVF clinics

Presently regulation of these clinics comes under the purview of Pre-Conception

and Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 2003, (PC &

PNDT Act) or guidelines given by Indian Council for Medical Research (ICMR) which

are not legally binding. These clinics are exploiting the provisions of present law to suit

their motive of yielding financial gains. In the absence of any specific legislation

ART/IVF clinics may exploit both the parties (surrogate mother, intended parents). From

the result recorded during the survey it was found that 64 per cent of the clinics are

regulated by present law i.e. PC & PNDT Act, 2003. 14 per cent clinics were regulated

by ICMR guidelines. 22 per cent of the clinics have their own rules and policies for the

regulation of their clinics (Table 6.4.1 and Figure 6.4.1).

230

Table 6.4.1

Regulation of IVF clinics


1. ICMR Guidelines, 2005 07 14%

2. Present Law (e.g. PC & PNDT Act, 2003) 32 64%

3. Own Rules/Policies 11 22%

Total 50 100%

Figure 6.4.1

Regulation of IVF clinics

0

10

20

30

40

50

60

70

ICMR Guidelines Present Law (e.g. PC

& PNDT Act, 2003)

Own Rules/Policies

14

64

22

4.2 Frequency of surrogacy cases

These days more and more people are opting for surrogacy due to many reasons.

One of the prime reasons is declined fertility rate. The other reason is that the women are

becoming more career oriented these days. They do not want to spare time and take pain

of pregnancy and its related problems. Some are opting for surrogacy out of fear of

labour pain or out of convenience. For these very reasons lots of IVF clinics and the

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related industry is cropping up. In the survey it was found that on an average an IVF

clinic handles less than 10 cases per year (70 per cent). Around 18 per cent of IVF clinics

were handling 10 to 25 cases yearly (18 per cent). There were some well-established

clinics which were handling 25 to 50 cases yearly (12 per cent). But in any case no clinic

was handling more than 50 cases per year (Table 6.4.2 and Figure 6.4.2).

Table 6.4.2

Frequency of surrogacy cases in IVF clinics


1. Less than 10 35 70%

2. 10 to 25 09 18%

3. 25 to 50 06 12%

4. More than 50 Nil 0%

Total 50 100%

Figure 6.4.2

Frequency of surrogacy cases in IVF clinics

70

18

120

Less than 10

10 to 25

25 to 50

More than 50

232

4.3 Purpose of Surrogacy

It was observed in the survey that purpose of the surrogacy was primarily

commercial (76 per cent). Generally the women who are acting as surrogates come from

economically and socially weaker sections of the society. They perform surrogacy to

meet the immediate and pressing demands of their family like food, shelter, education for

their children and wellbeing of the entire family. But sometimes the purpose for doing

surrogacy is entirely altruistic as is done by a relative or family friend of the infertile

couple to help them fulfill their dream of parenthood. It was found in the survey that 6

per cent of IVF clinics/doctors have done altruistic surrogacy. 18 per cent of them said

that they have faced surrogacy cases for both the purposes i.e. commercial as well as

altruistic (Table 6.4.3 and Figure 6.4.3).

Table 6.4.3

Purpose of surrogacy as faced by IVF clinics


1. Commercial 38 76%

2. Altruistic 03 6%

3. Both 09 18%

4. None of above Nil 0%

Total 50 100%

Figure 6.4.3

Purpose of surrogacy as faced by IVF clinics

76

6

18 0

Commercial

Altruistic

Both

None of the above

233

4.4 Source to find surrogate mother

Finding a suitable host to carry a baby is a difficult task for the infertile couples. It

was asked from the IVF clinics/doctors that how do they arrange a surrogate mother for

their clients. 30 per cent of them told that the intended parents themselves arrange for a

surrogate mother. Whereas 52 per cent said that they arrange surrogate mothers through

their own records or databases. 4 per cent told that surrogate mother herself approach to

them. 14 per cent revealed that they find surrogate mothers through advertisements.

However, in the Draft Bill of Assisted Reproductive Technologies, 2010 any kind of

advertisement relating to surrogacy is prohibited (Table 6.4.4 and Figure 6.4.4).

Table 6.4.4

Source to find surrogate mother


1. Through own Data Base 26 52%

2. Advertisement 07 14%

3.

4.

Surrogate Mother Herself

Intended Parents

02

15

4%

30%

Total 50 100%

Figure 6.4.4

Source to find surrogate mother

0

10

20

30

40

50

60

Through own

Data Base

Advertisement Surrogate

Mother Herself

Intended

Parents

52

14

4

30

234

4.5 Procurement of genetic material

During the survey it was asked from IVF clinics/doctors that from where do they

arrange genetic material to initiate a surrogacy procedure in case intended couple is

unable to produce eggs/sperm. 72 per cent of them told that they arrange it from

independent sperm/egg banks. 22 per cent of them said that intended couple itself

arranges for it. 4 per cent said that they have a specified list of donors to whom they

consult whenever there is such demand. Only 2 per cent arrange it through advertisement

(Table 6.4.5 and Figure 6.4.5).

Table 6.4.5

Procurement of genetic material by IVF Clinics


1. From sperm/egg banks 36 72%

2. List of donors 02 4%

3.

4.

Advertisement

Intended Couple arranges for it

01

11

2%

22%

Total 50 100%

Figure 6.4.5

Procurement of genetic material by IVF Clinics

0

10

20

30

40

50

60

70

80

From sperm/egg

banks

List of donors Advertisement Intended couple

arranges for it

72

4 2

22

235

5. Profile of surrogate mother

The women who engage in surrogacy are usually poor. They agree to conceive on

behalf of another couple in return for a sum of money that would otherwise take many

years to make. It is important to understand that these women generally do not have many

career prospects as they are predominately uneducated, often engaged in casual work,

sometimes migrants in search of better job opportunities and living in slum areas with

inadequate housing facilities. They come from lower middle class backgrounds, are

married, and are in need of quick money in order to, among other purposes, maintain

their families, buy a house or pay for the children‘s higher education or to settle up a

business for her unemployed, drunkard husband. There is a growing demand for fair-

skinned, educated young women to become surrogate mothers for foreign couples.

Usually the young women are preferred to perform surrogacy so as to avoid any medical

complication. According to the survey, most of the fertility clinics pay surrogate mothers

between Rs. 1 lakh to 3 lakhs for carrying a pregnancy.

5.1 Marital status of the Surrogate Mother

It is a matter of concern as what should be the marital status of the surrogate

mother. Around 50 per cent of the legal experts involved in the survey opined that the

woman acting as a surrogate must be married. A small fraction of 9 per cent qualified the

unmarried women to act as surrogates. 15 per cent were of the view that woman acting as

surrogate may be a widow and 26 per cent of the opinion that she can be a

divorcee/separated [Table 6.5.1(a) and Figure 6.5.1(a)]. In response to this question 90

percent IVF clinics/doctors said that generally surrogate mother is a married woman and

sometimes she is a widow/divorcee/separated. But in no case they had performed

surrogacy with an unmarried woman as surrogate [Table 6.5.1(b) and Figure 6.5.1(b)].

Generally women acting as surrogate mothers come from poor families. In order

to meet their immediate needs, they find surrogacy an easy and fast way to make money.

The result shows that most of the woman acting as surrogate mothers are married. They

opt surrogacy for financial reasons or helping a relative. Unmarried women opt surrogacy

for the deep pressing financial reason only. Like unmarried women other single women

like widow, divorcee or separated go for surrogacy generally for the same reasons.

236

Table 6.5.1(a)

Comments by legal experts regarding the marital status of the surrogate mother


1. Married 50 50%

2. Unmarried 09 9%

3. Widow 15 15%

4. Divorcee/separated 26 26%

Total 100 100%

Figure 6.5.1(a)

Comments by legal experts regarding the marital status of the surrogate mother

50

9 15

26

Married

Unmarried

Widow

Divorcee/ Separated

237

Table 6.5.1(b)

Marital status of the surrogate mother as told by IVF clinics/doctors


1. Married 45 90%

2. Unmarried Nil 0%

3. Widow 02 4%

4. Divorcee/separated 03 6%

Total 50 100%

Figure 6.5.1(b)

Marital status of the surrogate mother as told by IVF clinics/doctors

0

10

20

30

40

50

60

70

80

90

Married Unmarried Widow Divorcee/

separated

90

0 4 6

5.2 Requirement of consent before entering the surrogacy contract

Ours is basically a male dominating society. A woman whether married or

unmarried, educated or uneducated, employed or unemployed has to consult or take

permission of her family members before taking any major decision. A major fraction of

legal experts i.e. 61 per cent involved in survey were in favour of the surrogate mother

taking consent of her husband and other family members. 27 per cent were of the opinion

that only the woman entering the surrogacy contract should decide for herself [Table

238

6.5.2(a) and figure 6.5.2(a)]. Whereas 80 per cent of IVF clinics/doctors said that

husband’s consent is necessary before entering into a surrogacy contract. Only 6 per cent

of them told that surrogate mother can enter a surrogacy contract on her own without

taking anybody’s consent [Table 6.5.2(b) and Figure 6.5.2(b)].

Table 6.5.2(a)

Opinion of legal experts regarding the consent required by surrogate mother


1. Surrogate Mother only 27 27%

2. Her Husband only 09 9%

3. Her Family Members 03 3%

4. All of above 61 61%

Total 100 100%

Figure 6.5.2(a)

Opinion of legal experts regarding the consent required by surrogate mother

27

93

61

Surrogate Mother only

Her Husband only

Her Family Members

All of above

239

Table 6.5.2(b)

Data received from IVF clinics about the requirement of consent by surrogate mother


1. Surrogate Mother only 3 6%

2. Her Husband only 40 80%

3. Her Family Members Nil 0%

4. All of above 07 14%

Total 50 100%

Figure 6.5.2(b)

Data received from IVF clinics about the requirement of consent by surrogate mother

0

10

20

30

40

50

60

70

80

Surrogate

Mother only

Her Husband

only

Her Family

Members

All of above

6

80

0

14

5.3 Own children of Surrogate mother

It seems viable to have at least one child of her own before surrendering another

one in the surrogacy arrangement. This is due to the fact that in case of any mishappening

or accident which impairs her ability to reproduce, she is still having her own child or

children. During the survey it was observed that 52 per cent of the legal experts said that

it does not matter whether the surrogate mother is having the children or not. Whereas 30

per cent felt that she should have at least one child of her own and 10 per cent favoured

for two children of surrogate mother. Almost similar response from IVF clinics/doctors

240

was recorded during the survey i.e. 78 per cent preferred that surrogate mother should

have at least one child of her own before going for surrogacy arrangement. 10 per cent

favoured for two children while 12 per cent said it doesn’t matter that if she is having any

child or not (Table 6.5.3 and Figure 6.5.3).

Table 6.5.3

Views regarding own children of a surrogate mother

Figure 6.5.3

Views regarding own children of a surrogate mother

0

10

20

30

40

50

60

70

80

At least one At least two No child at all Does not

matter

78

10

0

12

30

10 8

52

Legal Experts

IVF Clinincs/Doctors

5.4 Age Limit of woman to become surrogate mother

Majority of the doctors (52 per cent) were of the view that the ideal period for a

woman to become a surrogate mother is 26 to 35 years of age. 42 per cent were of the

view that the age to become surrogate mother should be in between 18 to 25. Very few of



1. At least one 30 30% 39 78%

2. At least two 10 10% 05 10%

3. No child at all 08 8% Nil 0%

4. Does not matter 52 52% 06 12%

Total 100 100% 50 100%

241

them i.e. only 3 per cent felt that the age should be 36 to 45 years (Table 6.5.4 and Figure

6.5.4).

It is known fact that the female of 18 years is mature enough (physically and

mentally) to bear a child. But the majority of doctors have suggested that the age to

become a surrogate mother is 26 to 35 years. It is because of the fact that by the time she

thinks of becoming a surrogate mother she would have been completed her family with

one or more children of her own as discussed earlier.

Table 6.5.4

Age limit to become surrogate mother according to medical experts


1.

2.

Below 18

18 to 25

Nil

21

0%

42%

3. 26 to 35 26 52%

4. 36 to 45 03 6%

5. 45 and above Nil 0%

Total 50 100%

Figure 6.5.4

Age limit to become surrogate mother according to medical experts

0

42

52

6 0

Below 18

18 to 25

26 to 35

36 to 45

45 and above

242

5.5 Educational qualifications of surrogate mothers

During the survey it was observed that most of the surrogate mothers were

illiterate (64 per cent). 22 per cent were educated to matric level. While 12 per cent were

educated to higher secondary level. Only 2 per cent of them were graduates (Table 6.5.5

and Figure 6.5.5). These days it’s a trend towards employing the surrogate mother with

good educational as well as social background especially where foreign couples are

involved.

Table 6.5.5

Educational qualifications of surrogate mothers as recorded by IVF clinics


1. Illiterate 32 64%

2. Matric 11 22%

3. Higher Secondary 06 12%

4.

5.

Graduate

Post Graduate

01

Nil

2%

0%

Total 50 100%

Figure 6.5.5

Educational qualifications of surrogate mothers as recorded by IVF clinics

0

10

20

30

40

50

60

70

Illiterate Matric Higher

Secondary

Graduate Post

Graduate

64

22

12

20

243

5.6 Social status of surrogate mothers

88 per cent of IVF clinics/doctors said that surrogate mothers come from lower

strata of society. Only 10 per cent said that they hail from middle class families. The

lower strata are usually economically backward. Thus to make easy and fast money they

opt for surrogacy. The result shows 2 per cent of the surrogate mothers belonging to

upper middle class. These were those women who were helping their relatives for having

a child on humanitarian grounds (Table 6.5.6 and Figure 6.5.6).

Table 6.5.6

Social status of surrogate mother as recorded by the IVF clinics


1. Lower Strata 44 88%

2. Middle Strata 05 10%

3. Upper Middle Strata 01 2%

4. Upper Strata Nil 0%

Total 50 100%

Figure 6.5.6

Social status of surrogate mother as recorded by the IVF clinics

88

10

2

0 Lower strata

Middle strata

Upper middle strata

Upper strata

244

5.7 Insurance Policy for surrogate mother

These days there are various insurance companies which provide different kinds

of insurance policies for life, health etc. Everybody wants a good health and medical

insurance plan. As such a pregnancy involves so many health complications, even a

danger to life sometimes. In order to avoid those complications and potential health risks

a better care and treatment is required which in turn requires more expenses. For bearing

those expenses an insurance policy can be helpful. Here the question arises that in a

surrogacy arrangement whether a surrogate mother who is undergoing the pregnancy

process having potential health and life risks should be insured or not.

During the survey 30 per cent of medical experts told that a surrogate mother

should be insured for her health. 62 per cent favoured for both types of insurance i.e. her

health and her life as well. 8 per cent of them were in favour of life insurance policy for

surrogate mother. When this questions was asked from the legal experts 56 per cent were

in favour of both type of insurance (health and life insurance) for the surrogate mother.

28 and 14 per cent of them favoured for her Life and Medical & Health insurance

respectively. Only 2 per cent told that she should not insured at all for undergoing a

surrogacy arrangement (Table 6.5.7 and 6.5.7).

Table 6.5.7

Views regarding the provision of insurance policy for surrogate mother



1. Her Life (Life Insurance) 28 28% 04 8%

2. Medical and Health Insurance 14 14% 15 30%

3. Both of above 56 56% 31 62%

4. No insurance at all 02 2% Nil 0%

Total 100 100% 50 100%

245

Figure 6.5.7

Views regarding the provision of insurance policy for surrogate mother

0

10

20

30

40

50

60

70

Her Life

(Life

Insurance)

Medical and

Health

Insurance

Both of

above

No

insurance at

all

28

14

56

28

30

62

0

Legal Experts

Medical Experts

5.8 Monetary benefits for becoming surrogate mother

The amount of compensation given to the surrogate mother is another particularly

different aspect when what is involved is the creation of life-a baby no less. Its value has

to be universally uniform as a product of the procreative power of women and not of

social labour that varies in value and creates commodities. During the survey 76 per cent

of IVF clinics/doctors told that on an average a surrogate mother is getting Rs. 1 lakh to 3

lakhs for carrying a pregnancy. 18 per cent said that they earn less than one lakh and 6

per cent revealed that they earn Rs. 3 lakhs to 5 lakhs (Table 6.5.8 and Figure 6.5.8).

Table 6.5.8

Response of medical experts regarding monetary benefits to become surrogate mother


1. Less than one lakh 09 18%

2. 1 to 3 lakhs 38 76%

3. 3 to 5 lakhs 03 6%

4. More than 5 lakhs Nil 0%

Total 50 100%

246

Figure 6.5.8

Response of medical experts regarding monetary benefits to become surrogate mother

18

76

6 0

Less than one lakh

1 to 3 lakhs

3 to 5 lakhs

More than 5 lakhs

5.9 Number of attempts for becoming surrogate mother

The draft of Assisted Reproductive Technologies (Regulation) Bill, 2010 permits

three surrogate pregnancies for a woman apart from her own children. According to 8 per

cent of medical experts, a normal woman of good health can become surrogate mother

for three times. 52 per cent of them were of the view that a woman can undergo

surrogacy twice. 34 per cent said that she should become surrogate mother only once as

they think that such women should not compromise with their health in greed of earning

easy money. Whereas 6 per cent were of the view that a woman can undergo surrogacy

for any number of times (Table 6.5.9 and Figure 6.5.9).

Table 6.5.9

Opinion of medical experts regarding number of attempts for undergoing surrogacy


1. Only once 17 34%

2. Twice 26 52%

3. Thrice 04 8%

4. Any number of times 03 6%

Total 50 100%

247

Figure 6.5.9

Opinion of medical experts regarding number of attempts for undergoing surrogacy

34

52

86

Only once

Twice

Thrice

6. Right to abort the child Right in case of any health/life threatening situation

There is a complex situation when a surrogate bound in contract is not able to

complete the deal successfully because of her health problem. On the other hand if she is

forced to carry on with the pregnancy according to the contract, this will be a violation of

her fundamental rights of freedom and liberty. Majority of legal experts (75 per cent) in

the survey recommended that the surrogate mother must have the right to abort the child

if there is any threat to her health/ life in case she carries on with pregnancy survey

(Table 6.6 and Figure 6.6).

Table 6.6

Opinion of legal experts regarding right of surrogate mother to abortion


1. Yes 75 75%

2. No 09 9%

3. Can’t say 16 16%

Total 100 100%

248

Figure 6.6

Opinion of legal experts regarding right of surrogate mother to abortion

75

9

16

Yes

No

Can't say

7. Person responsible for wellbeing of surrogate mother

The whole process of child bearing till its birth is very difficult and thus requires a

very good care and a regular watch on the health aspects of the mother as well as the

child in the womb. In a normal case of pregnancy the expecting couple is itself

responsible for the wellbeing of the pregnancy. But in case of a surrogacy arrangement

situation is different where a third party is involved. Here the question arises that who

will ensure the wellbeing of the mother during the gestational period. 12 per cent of IVF

clinics/doctors said that it is the responsibility of intended parents to ensure the regular

check-ups etc. of surrogate mother. 6 per cent of them told that IVF clinic which arranges

for this process ensures the wellbeing of surrogate mother. Only 2 per cent told that the

surrogate mother herself takes responsibility of her wellbeing. Whereas 80 per cent of

them said that it is a collective effort of all of them. On the contrary, majority of legal

experts i.e. 77 per cent opined that the intended parents should be responsible for the

wellbeing of surrogate mother as they are the persons for whom the whole process of

surrogacy is to be initiated. Only 12 per cent of them were of the view that all the parties

involved i.e. intended parents, surrogate mother as well as the IVF clinic are equally

responsible for the wellbeing of surrogate mother during her gestational period (Table 6.7

and Figure 6.7).

249

Table 6.7

Person responsible for wellbeing of surrogate mother

Figure 6.7

Person responsible for wellbeing of surrogate mother

0

10

20

30

40

50

60

70

80

Intended

parents

Surrogate

mother

herself

IVF clinic

itself

All of above

77

4 71212

26

80

Legal Experts

Medical Experts

8. Time duration for which the expenses of the surrogate mother should be borne

by the intended parents

It is a matter of concern that till what time the intended parents should ensure the

expenses of the surrogate mother in a surrogacy arrangement. The legal experts as well as

medical experts involved in the survey were given some options for this to which their

responses were recoded as shown in the Table 7.8 and Figure 7.8 below.



1. Intended parents 77 77% 06 12%

2. Surrogate mother herself 04 4% 01 2%

3. IVF clinic itself 07 7% 03 6%

4. All of above 12 12% 40 80%

Total 100 100% 50 100%

250

Table 6.8

Duration for which the expenses of surrogate mother should be borne by intended

parents

Figure 6.8

Duration for which the expenses of surrogate mother should be borne by intended

parents

0

10

20

30

40

50

60

70

80

90

Till the birth of

the child

Till handing over

the child

Till surrogate

mother is free

from all health

complications

arising due to

pregnancy

1421

65

28

90

Legal Experts

Medical Experts



1. Till the birth of the child 14 14% 01 2%

2. Till handing over the child 21 21% 04 8%

3. Till surrogate mother is free

from all the health

complications arising due to

pregnancy

65 65% 45 90%

Total 100 100% 50 100%

251

9. Handing over the child to intended parents

After the birth of the child, it is a matter of concern that what should be the time

frame in which the child must be handed over to the intended parents. If the child is

immediately after the birth, handed over to the intended parents, he/she will be deprived

of the breast milk which is considered the nectar of life in his/her initial days. On the

other hand if the child is handed over after a specific interval of time there could be a

possibility that the surrogate mother may develop emotional bonding with the child

which would not be in anybody’s interest i.e. neither the surrogate mother herself nor the

intended parents or the child.

During the survey it was found that in most of the cases (92 per cent) the child is

handed over to the intended parents immediately after the birth. 6 per cent responded that

the child is given after the interval of 40 days so that he/she can have the much needed

breast milk for that minimum period of time. Only 2 per cent revealed that child is given

after 6 months when the baby is sufficiently mature to wean the breast milk (Table 6.9

and Figure 6.9)

Table 6.9

Data received from IVF clinics/doctors regarding handing over the child to intended

parents


1. Immediately after birth 46 92%

2. After 40 days 03 6%

3.

4.

After 6 months

Within a year

01

Nil

2%

0%

Total 50 100%

252

Figure 6.9

Data received from IVF clinics/doctors regarding handing over the child to intended

parents

0

10

20

30

40

50

60

70

80

90

100

Immediately

after birth

After 40 days After 6 months Within a year

92

62 0

10. Refusal to give or take the custody of the child

As discussed earlier that in case of delayed handing over the child may lead to an

emotional attachment of surrogate mother with the child. In that case she may refuse to

part with the child. It seems unlikely, however, that a woman will sign a contract as

surrogate because she really want a baby for herself but want someone to pay for their

insemination and other medical expenses. On the other hand the intended parents may

also refuse to take the custody of the child due to some reasons like separation of

intended parents; any physical impairment in child; child is not of preferred sex etc. A

question related to this issue was asked from IVF clinics/doctors. Majority of them i.e. 84

per cent denied such an incident where a surrogate mother has refused to give the child’s

custody or the intended parents denied taking the custody of the child. 12 per cent of

them said that it rarely happened while only 4 per cent confronted such a situation only

once (Table 6.10 and Figure 6.10).

253

Table 6.10

Incidence of refusal to give or take the custody of the child in IVF clinics


1. Only once 02 4%

2. Sometimes 06 12%

3.

4.

Most of the times

Never

Nil

42

0%

84%

Total 50 100%

Figure 6.10

Incidence of refusal to give or take the custody of the child in IVF clinics

0

10

20

30

40

50

60

70

80

90

Only once Sometimes Most of the times Never

4

12

0

84

11. Provision of counselling sessions

As discussed above, situations can arise where a surrogate mother refuses to part

with the child and intended parents deny to take the custody of the child after his/her

birth. For the smooth execution of the entire surrogacy arrangement it is desired

everybody involved is aware of his or her role. To ensure this they can be provided with

some counselling sessions in this regard. It was found in the survey that 92 per cent IVF

clinics/doctors used to provide guiding and counselling sessions to both the parties in

254

order to tackle the emotional instability problems during the gestational period as well as

after the birth of the child. 8 per cent told that they occasionally provide such session i.e.

need based (Table 6.11 and Figure 6.11)

Table 6.11

Provision of counselling sessions by IVF clinics


1. Always 46 92%

2. Occasionally 04 8%

3.

4.

Never

Refer them to professionals

Nil

Nil

0%

0%

Total 50 100%

Figure 6.11

Provision of counselling sessions by IVF clinics

0

10

20

30

40

50

60

70

80

90

100

Always Occasionally Never Refer them to

professionals

92

80

0

255

12. Custodians of the child to be born if the intended parents are incapable

It is a matter of concern if intended parents at any stage of the surrogacy

arrangement show their incapacity (due to illness, death or some other inevitable reason)

to take the custody of the child then who should be made responsible to take the

responsibility of the child. A mixed response was recorded from legal experts during the

survey as shown in the table 6.12 and figure 6.12 below.

As the results show that most of them (35 per cent) are of the opinion that in case

of incapacity of intended couple to take the custody of the child, there should be a

guarantor or surety in the contract who can be made liable to take the custody of the

child. Though 32 per cent of them said the in such a case the custody should be given to

the surrogate mother, as being a mother she would take good care of the child. But if the

surrogate mother is doing it for commercial purpose it would not be in the best interest of

the child to be born to hand over the child to her as she may not want another child

because she might have a complete family and is more inclined towards the monetary

profits. In that case she may not be able to do the proper bringing up of the child. So the

provision of a guarantor in the surrogacy contract should be added in the draft of Assisted

Reproductive Technologies (Regulation) Bill, 2010.

Table 6.12

Views of legal experts regarding the custody of the child to be born in case of incapacity

of intended parents


1. Surrogate Mother 32 32%

2. Kin of Intended Parents 26 26%

3.

4.

Some Orphanage

Guarantor/Surety of contract

07

35

7%

35%

Total 100 100%

256

Figure 6.12

Views of legal experts regarding the custody of the child to be born in case of incapacity

of intended parents

32

26

7

35

Surrogate Mother

Kin of Intended Parents

Some Orphanage

Guarantor/ Surety of

contract

13. Citizenship of the child in case of foreign intended parents

It is well obvious that if the intended parents as well as the surrogate mother are

locals i.e. both belong to some territory in India; the nationality of the child to be born

will be Indian. As we have discussed earlier that India is fast becoming a cheap deal for

childless foreign couples and hence a hub for surrogacy. Concerns are there when people

from other countries approach for surrogacy in India. In that case it should be clear that

what should be the citizenship of the child to be born. 58 per cent of the legal experts in

the survey suggested that the child should belong to the country of the intended parents.

29 per cent of them suggested that the child to be born under a surrogacy arrangement

should have dual citizenship i.e. the citizenship of both, the country of surrogate mother

as well as intended parents (Table 6.13 and Figure 6.13).

It is to be noted here, that Section 35 (8) of Assisted Reproductive Technologies

Bill, 2010 provides that even a child born under a surrogacy arrangement in India and the

intended parents are foreigners, the child shall not be an Indian citizen.

257

Table 6.13

Views of legal experts regarding the citizenship of the child to be born when intended

parents are foreigners


1. Country of surrogate mother 12 12%

2. Country of intended parents 58 58%

3.

4.

Both of above

None

29

01

29%

1%

Total 100 100%

Figure 6.13

Views of legal experts regarding the citizenship of the child to be born where intended

parents are foreigners

12

58

29

1

Country of surrogate

mother

Country of intended

parents

Both of above

None

14. Status of the child to be born

Indian society by and large is still very conservative. The status of the child born

in such an arrangement like surrogacy is still not considered entirely natural or legitimate

in our society. During the survey 11 per cent of the legal experts recommended that such

a child should be considered as an adopted child. Whereas 31 per cent of them were of

the view that such child could be given a special status of “surrogate child”. But a

whooping fraction of them favoured that the child to be born should be considered as

natural or legitimate child of the intended parents (Table 6.14 and figure 6.14).

258

Table 6.14

Opinion of legal experts regarding status of the child to be born under a surrogacy

arrangement


1. Natural/Legitimate 58 58%

2. Adopted 11 11%

3. Surrogate 31 31%

Total 100 100%

Figure 6.14

Opinion of legal experts regarding status of the child to be born under a surrogacy

arrangement

58 11

31

Natural/legitimate

Adopted

Surrogate

15. Legal mother of the surrogate child

There is a question as who should be the legal mother of the surrogate child. Is

she the one who donated/provided the genetic material (i.e. the eggs) or the surrogate

woman who gestated the baby for 9 months or the intended mother who initiated the

entire surrogacy arrangement? Majority of the legal experts(80 per cent)suggested that

the intended mother should be considered as the legal mother of the surrogate child as she

had initiated the entire process. 12 per cent opined that genetic/biological mother should

be given the status of legal mother. Only 8 per cent said that the gestational/surrogate

259

mother should be the legal mother (Table 6.15 and Figure 6.15).

It is observed in the survey that majority were in favour of intended mother to be

given the status of legal mother. As others (genetic, gestational) are only facilitators in

the entire process. It is the intended mother only, who desired to have a child but due to

her incapacity to bear a child she initiated the whole process of surrogacy.

Table 6.15

Opinion of legal experts regarding the legal mother of the surrogate child


1. Genetic/Biological Mother 12 12%

2. Gestational/Surrogate Mother 08 8%

3. Intended Mother 80 80%

Total 100 100%

Figure 6.15

Opinion of legal experts regarding the legal mother of the surrogate child

128

80

Genetic/Biological

Mother

Gestational/Surrogate

Mother

Intended Mother

16. Motive of donating genetic material by the donor

With the technological revolution in the field of assisted reproduction the solution

to infertility is also found. It is no longer a dream of infertile couple to have a child of

their own. With this technological advancement it is possible that child can be reproduced

260

using one’s own genetic material (egg/sperms) or it can be borrowed from third person if

they are unable to produce the genetic material. That is why there are so many sperm/egg

banks which supply the genetic material commercially. The source of genetic material is

human being who may donate it for financial gains or on humanitarian grounds.

It was asked during the survey from IVF clinics/doctors about the general motive

of the donors behind donating genetic material. In response 52 per cent of them suggested

that they do so for monetary gains. 28 per cent told that they are self motivated. 8 per cent

are of the view that they do so, on humanitarian grounds. 12 per cent said that they

donate the genetic material on the request of their relative or friends in order to help them

(Table 6.16 and Figure 6.16).

Table 6.16

Motive of donors behind donating genetic material according to medical experts


1. Monetary Aspects 26 52%

2. Self-Motivated 14 28%

3.

4.

On Request (to help relatives/friends)

Humanitarian Grounds

06

04

12%

8%

Total 50 100%

Figure 6.16

Motive of donors behind donating genetic material according to medical experts

52

28

12

8

Monetary Aspects

Self-Motivated

On Request (to help

relatives/friends)

Humanitarian Grounds

261

17. Revelation of the identity of the gamete donors to the intended parents

It has been scientifically proved that the genetic material plays an important role

in the overall development of the child. Most of the times it is seen in a surrogacy

arrangements that the intended parents are keen to know the background of the person

whose genetic material is going to be used for their purpose. Because they want the child

to be born should acquire the best personality.

During the survey it was asked to legal experts whether to disclose or not the

identity of the gamete donor to the intended parents with the donors consent. For which

44 per cent have told that the identity of gamete donor should be disclosed to the intended

parents on their demand. And 19 per cent of them responded yes. Only 29 per cent denied

disclosing the identity of the gamete donor. 8 per cent of them have given other reasons

for disclosing the identity of gamete donor [Table 6.17(a) and Figure f]. When the same

question was asked from IVF clinics/doctors, 14 per cent of them told that they always

reveal the identity of donor to the intended couple. 52 per cent of them were against the

revelation of identity of donor even with his consent and 28 per cent told that identity of

donor is revealed on demand of intended couple. 6 per cent said that they do reveal the

identity of donor due to some other reason (e.g. Court order or some medical urgency)

[Table 6.17(b) and Figure 6.17(b)].

Ethically it is suggested that the identity of the gamete donor should be disclosed

to the intended parents even if without the donors consent. This is because of the fact that

there could be a family relation between the donor and the intended couple. For example

a father’s genetic material is being used for he own daughter or there could be a situation

where a brother and a sister are involved. As reproduction between such relations are

considered unethical.

262

Table 6.17(a)

Opinion of legal experts about the revelation of identity of the gamete donor


1. Yes 19 19%

2. No 29 29%

3.

4.

On their demand

Any other reason

44

08

44%

8%

Total 100 100%

Figure 6.17(a)

Opinion of legal experts about the revelation of identity of the gamete donor

0

5

10

15

20

25

30

35

40

45

Yes No On their demand Any other reason

19

29

44

8

263

Table 6.17(b)

Revelation of identity of the gamete donor by IVF clinics/doctors


1. Yes 07 14%

2. No 26 52%

3.

4.

On their demand

Any other reason

14

03

28%

6%

Total 50 100%

Figure 6.17(b)

Revelation of identity of the gamete donor by IVF clinics/doctors

14

52

28

6

Yes

No

On their demand

Any other reason

18. Discussion of the details of surrogate mother

As discussed earlier that these days intended parents are long for the best for

themselves. That is why they are very keen to know about the gamete donor as well as

surrogate woman who is going to carry their child for the entire gestational period.

Usually they look for best features of surrogate mother such as fair complexion, good

health, good social and educational background etc. It was asked from IVF

clinics/doctors that whether the intended parents want to know about the surrogate

mothers before entering a surrogacy arrangement to which they responded positively i.e.

72 per cent of them confirmed that intended parents do discuss the details of surrogate

mother. 16 per cent responded that most of the times intended couples ask the details of

surrogate mother. While 8 per cent said that very rarely they discuss such details. And

264

there were only 4 per cent who told that they do not discuss such details at all (Table 6.18

and Figure 6.18)

Table 6.18

Discussion of surrogate mother’s details with IVF clinics by intended parents


1. Always 36 72%

2. Often 08 16%

3.

4.

Rarely

Never

04

02

8%

4%

Total 50 100%

Figure 6.18

Discussion of surrogate mother’s details with IVF clinics by intended parents

72

16

8 4

Always

Often

Rarely

Never

19. Demand by intended parents for choicest features of the child to be born

Due to technological revolution it is possible to have the desired features of the

child to be born. With the latest concept of ‘designer babies’ today it is possible to design

the features like complexion, colour of eyes, hair colour etc. It was inquired from the IVF

clinics/doctors that whether intended couples ask for the choicest features of the child to

be born to which 70 per cent of them answered affirmatively. 6 per cent of IVF clinics

never faced this situation. 20 per cent of them told that sometimes they receive such

requests. Only 4 per cent said that most of the times they receive such demands by

intended parents (Table 6.19 and Figure 6.19).

265

Table 6.19

Demand by intended parents from IVF clinics/doctors for choicest features of the child to

be born


1. Yes 35 70%

2. No 03 6%

3.

4.

Sometimes

Most of the times

10

02

20%

4%

Total 50 100%

Figure 6.19

Demand by intended parents from IVF clinics/doctors for choicest features of the child to

be born

20. Misuse of modern sex-selective techniques by ART/IVF clinics

Modern pre-conception and pre-natal diagnostic techniques also have the

potential to fix the sex of the foetus at pre-conception stage or detect the sex of the foetus

in pre-natal period. The patriarchal social structure, easy availability and affordability of

sex determination technologies and gross violation of medical ethics have spawned the

practice of sex selection to even the remotest and most under developed regions of India

leading to female foeticide. The misuse of modern diagnostic techniques to discover the

sex of the foetus is criminal as per Indian law. This is because the misuse of pre

266

conception and pre-natal diagnostic techniques for the purpose of sex determination

leading to female foeticide has a baneful impact on the society. Medical fraternity in

India is divided in its opinion of sex selection but desists from speaking aloud because of

the sensitivity of the issue. But there are some ART/IVF clinics which do perform such

tests secretly. During the survey when asked from medical experts that if they are aware

of such ART/IVF clinics. 92 per cent of them said that they are not aware about this.

Only 4 per cent reveled that there are such clinics which provide the choice of preferred

sex of foetus whereas 4 per cent of them resisted from commenting on it (Table 6.20 and

Figure 6.20).

Table 6.20

Comments by medical experts regarding misuse of modern techniques in providing

choice of sex of foetus by ART/IVF clinics


1. Yes 02 4%

2. No 46 92%

3. Can’t say 02 4%

Total 50 100%

Figure 6.20

Comments by medical experts regarding misuse of modern techniques in providing

choice of sex of foetus by ART/IVF clinics

267

21. Right of child to know the identity of the surrogate mother

Article 8 of UN Convention on the Rights of Child requires nations to “respect the

rights of the child to preserve his or her identity, including nationality, name and family

relations.” Surrogacy could be seen as an infringement of these rights. In our

contemporary culture young people have strong moral claims to know the genetic

identities. It has been contended by some scholars that now it is time for these moral

claims to convert to legal rights. There are some people who argue that in case of

surrogacy there are compelling reasons for not telling the child as it is not the best interest

of child to tell about the surrogate birth because there is a fear that telling a child how

they were conceived would cause severe social and psychological problems to the child.

It might happen that the surrogate child, in his adolescent period or when becoming

major, out of curiosity may want to know about the surrogate woman who gave birth to

him. It is clear that balancing of these competing interests is a difficult matter that

requires a full debate, discussing the merit of each case.

It is pertinent to note here that ART draft bill, 2010 provides for the right of a

major child to ask for the information excluding the personal identification, relating to the

donor or surrogate mother. Personal identification of donor or surrogate mother may be

released only in cases of life threatening medical condition which require physical testing

or samples of the genetic parents or surrogate other. But this personal identification will

only be released with the prior informed consent of the genetic parent or surrogate

mother.

During the survey 38 per cent of the people recommended that the child should

have the right to know the identity of the surrogate mother while 44 per cent said that the

identity of surrogate mother be disclosed only when there is some medical urgency to the

surrogate child. And 18 per cent were of the view that the identity of surrogate mother

should not be disclosed to the child in any case. Records are shown in the table 6.21 and

figure 6.21 below.

268

Table 6.21

Opinion of legal experts regarding the right of surrogate child to know the

identity of the surrogate mother


1. Yes 38 38%

2. No 18 18%

3. Only when required for medical treatment 44 44%

Total 100 100%

Figure 6.21

Opinion of legal experts regarding the right of surrogate child to know the

identity of the surrogate

38

18

44

Yes

No

Only when required for

medical treatment

22. Surrogacy as compared to using one’s body for commercial purpose

Transplantation of Human Organs Act, 1994 prohibits selling or buying human

organs for commercial gains. Those who are against surrogacy, consider surrogacy as

renting a womb for commercial purpose. Thus according to them surrogacy should be

banned.

But it is seen in the survey that 63 per cent legal experts considered it unethical to

compare surrogacy with ‘organ selling’ or ‘prostitution.’ According to them surrogacy is

269

a way through which a childless couple can fulfill desire to have a child of their own

gametes. They do not mind even if it is done for commercial purposes. So it is wrong to

compare it with organ selling or prostitution. Only 4 per cent equated it with prostitution

or organ selling when done for commercial purpose. 24 per cent told that it can be

compared with organ selling up to some extent as they are renting their wombs for

monetary profits (Table 6.22 and Figure 6.22).

Table 6.22

Views of legal experts about comparing surrogacy with prostitution or organ selling


1. Yes 04 4%

2. No 63 63%

3.

4.

Upto some extent

Cant’ say

24

09

24%

9%

Total 100 100%

Figure 6.22

Views of legal experts about comparing surrogacy with prostitution or organ selling

0

10

20

30

40

50

60

70

Yes No Upto some extent Cant’ say

4

63

24

9

270

23. Surrogacy and Article 21 of Constitution of India

Indian Constitutions provides right to life and personal liberty under Article 21. Most of

the legal experts (i.e. 66 per cent) are of the view that any kind of prohibition or

restriction on surrogate mother’s activities during the gestational period would not

amount to denial of fundamental right under Article 21. Whereas 17 per cent are of the

view that it is an attack on personal liberty of surrogate mother. Only 14 per cent feel that

it is against Article 21 upto some extent. (Table 6.23 and Figure 6.23)

Table 6.23

Surrogacy as against Article 21 of the Constitution of India

according to legal experts


1. Yes 17 17%

2. No 66 66%

3.

4.

Up to some extent

Can’t say

14

03

14%

3%

Total 100 100%

Figure 6.23

Surrogacy as against Article 21 of the Constitution of India

according to legal experts

17

66

14

3

Yes

No

Up to some extent

Can’t say

271

24. Prohibition of surrogacy- A violation of ‘right to privacy’ or ‘right to

procreate’

Any right to privacy must encompass and protect the personal intimacies of the

home, the family, marriage, motherhood, procreation and child rearing. Furthermore, the

right to privacy is implicit in right to life and personal liberty guaranteed to the citizens of

this country by Article 21 of Constitution of India. Right to reproduce or procreate is

fundamental and innate human right which comes under the purview of Article 21.

Surrogacy just furthers the right to procreation and to have a family that is implicit under

Article 21. In the above light the majority of the legal experts (43 per cent) said that

prohibiting surrogacy contracts would certainly amount to violation of ‘right to privacy’

or ‘right to procreate.’ 30 per cent said that it is a violation up to some extent. 22 per cent

did not consider it as any kind of violation of such right at all (Table 6.24 and Figure

6.24).

Table 6.24

Opinion of legal experts regarding surrogacy as a violation of Fundamental Right under

Indian Constitution


1. Yes 43 43%

2. No 22 22%

3.

4.

Up to some extent

Can’t say

30

05

30%

5%

Total 100 100%

272

Figure 6.24

Opinion of legal experts regarding surrogacy as a violation of Fundamental Right under

Indian Constitution

43

22

30

5

Yes

No

Upto some extent

Can't say

25. Exploitation of poor women by foreign intended couples

The poor, illiterate women of lower strata are often persuaded in such deals by

their spouse or middlemen or the foreign intended couples for earning easy money. Due

to lack of awareness of their rights they are often negotiated to enter in a surrogacy

contract on a cheaper deal. These women have no right on decision regarding their own

body and life. Surrogacy seems like an attractive alternative as a poor surrogate mother

gets very much needed money, an infertile couple gets their long-desired biologically

related baby and the country earns foreign currency, but the real picture reveals the bitter

truth. Due to lack of proper legislation, both surrogate mothers and sometimes intended

parents also are somehow exploited and the profit is earned by middlemen and

commercial agencies. Because of this fact most of the legal experts (44 per cent) were of

the view that these poor, illiterate women get exploited in the hands of foreign intended

couples as well as middlemen. While 21 per cent felt that there is exploitation of poor

women upto some extent. However, 28 per cent were of the view that there is no

exploitation of poor women acting as surrogate mothers at all (Table 6.25 and Figure

6.25).

273

Table 6.25

Views of legal experts on exploitation of poor women by foreign intended couples


1. Yes 44 44%

2. No 28 28%

3.

4.

Up to some extent

Can’t say

21

07

21%

7%

Total 100 100%

Figure 6.25

Views of legal experts on exploitation of poor women by foreign intended couples

44

28

21

7

Yes

No

Upto some extent

Can't say

26. Provision of required documentation for foreign intended couples

These days there is an increasing trend of foreign infertile couples coming to

India seeking surrogacy as it is comparatively cheaper in India than in other countries. In

this regard when an Indian surrogate mother gives birth to a child, the intended foreign

parents need exit visa for the child to take him/her back to their native place. There are

some IVF clinics operating in India which lure foreign infertile couples by promising

them to provide required documentation (passport, visa etc.) to carry the child back to

their native place so that they need not to go through the hassles of legal and other

formalities. During the survey it was asked to IVF clinics/doctors that do they provide

274

this type of service to those specific clients. Only 10 per cent of them told that they are

providing such services. While 8 per cent answered negatively. Majority of them (82 per

cent) told that they refer such client to the other formal agencies (Table 6.26 and Figure

6.26).

Table 6.26

Provision of required documentation for foreign couples by IVF clinics


1. Yes 05 10%

2. No 04 8%

3. Refer them to other agencies 41 82%

Total 50 100%

Figure 6.26

Provision of required documentation for foreign couples by IVF clinics

10

8

82

Yes

No

Refer them to other

agencies

27. Legalisation of surrogacy

Presently surrogacy cases are dealt with under the provisions of Pre Conception

and Pre Natal Diagnostic Techniques (Prohibition of Sex-Selection) Act, 2003. Some of

the related issues can come under the purview of Indian Contract Act, 1872. However,

there are some guidelines issued by Indian Council for Medical Research to regulate the

surrogacy in 2005. But these guidelines are not binding in nature. There is no specific law

275

which legalises surrogacy in India till date. Although one can appreciate the fact that the

Health Ministry and the Indian Council for Medical Research (ICMR) were dealing with

a complex and multiple issues. It is certainly not easy to design a law that will regulate

commercially driven clinics and curb the exploitation of vulnerable parties, while at the

same time enabling childless people to experience the joys of parenting. Recently ICMR

and MOHFW (Ministry of Health and Family Welfare) have come up with the draft

Assisted Reproductive Technologies (Regulation) Bill & Rules 2013.

During the survey 52 per cent of legal experts said that a new law should be made

which specifically deals with the surrogacy and its related issues. 26 per cent were of the

view that necessary amendments should be made in the present law so as to save on the

time and efforts to make a new law. 13 per cent told that ICMR guidelines are sufficient

enough to deal with the problem. 9 per cent of them were in favour of banning surrogacy.

On the other hand IVF clinics/doctors were only in favour of legalising surrogacy and the

response to ban the surrogacy was nil. Most of them (74 per cent) were in favour of

making amendments in present law and 6 per cent of them were favouring ICMR

guidelines. Though, 20 per cent of them recommended a need of a fresh law on the

subject (Table 6.27 and Figure 6.27).

Table 6.27

Views regarding legalisation of surrogacy

Legal Experts IVF clinics S.No. Response


1. Present ICMR Guidelines, 2005 13 13% 03 6%

2. Amendment in Present Law

(e.g., PC&PNDT Act, 2003)

26 26% 37 74%

3.

4.

Should be banned

New Law should be made

09

52

9%

52%

Nil

10

0%

20%

Total 100 100% 50 100%

276

Figure 6.27

Views regarding legalisation of surrogacy

Medical science is developing rapidly day by day world over. Childless couples

are prone to the process of surrogate motherhood. Therefore for adoption of the said

practice, a comprehensive regulation of agencies (i.e. ART/IVF clinics etc.) involved in it

is necessary in the form of licensing and inspection by competent authority for the benefit

of the society.

In the absence of any legal framework, the condition of surrogacy in India is that

of ‘legality without legislation.’ At present, India is a readily available destination for

intending parents, which makes the women here a viable option for the reasons of

poverty and illiteracy. The surrogates should be provided the best of the care by intending

parents. The surrogates should not be exploited by paying cheaper price. A formal

contract should be signed by both the parties before entering into a surrogacy

arrangement. A legal guardian should be appointed who will be legally responsible for

taking care of the surrogate during and after pregnancy till the child is delivered to the

commissioning parents.

Based on this Survey Report, it can be concluded that this matter should be

debated in public or in media. It is submitted that the people’s representatives should step

in to preserve the interest of the surrogate mother, intended parents and child to be born.

0

10

20

30

40

50

60

70

80

Present ICMR

guidelines

Amendment in

present law

Should be

baaned

New law

should be

made

13

26

9

52

6

74

0

20

Legal experts

Medical experts

277

The legislature should also take into account the loopholes which were pointed out in the

Draft Bill of Assisted Reproductive Technologies, 2010 discussed in the previous

chapter. But if this area remains unoccupied with both the legislature and executive

having not stepped in, under the constitution then the judiciary should come forward to

address the issue of surrogacy in larger public interest.

surrogate motherhood: an empirical...

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